Carlton Brewery (Fiji) Ltd v Bubble Up Investments Ltd [1998] FJHC 81; Hbc0228d.96s (29 June 1998)

Fiji Islands - Carlton Brewery (Fiji) Ltd v Bubble Up Investments Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC 0228 OF 1996

BETWEEN:

CARLTON BREWERY (FIJI) LIMITED
Applicant

AND:

BUBBLE UP INVESTMENTS LIMITED AND OTHERS
Respondents

S. Sharma for the Applicant
A. Singh for the First and Fourth Respondents

Date of Hearing: 17th Ju98
Date of Decision: 29th June 1998

DECISION

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the 17th June I gave ex tempore reasons forsing an application by the First and Fourth Respondents fors for a stay of execution on my Judgment and Sentence delivered on the 22nd of May 1998 whereby I fined the First and Fourth Respondents $15,000 in default distress in the case of the First Respondent and in the case of the Fourth Respondent a term of imprisonment of three months after they had pleaded guilty to charges of contempt of court.

At the conclusion of argument I stated that I would give more detailed reasons later after I had considered various authorities cited to me by the parties. I now give those reasons.

I have considered an affidavit by Baseer Ahmed Shah the Fourth Respt sworn on the 4th of June 1998 and a Draft Notice of AppeaAppeal to the Court of Appeal listing ten grounds of appeal against my judgment. I propose here to deal only with grounds 2 and 3. Ground 10 sought leave to argue additional grounds relating to the passing off or breach of the Applicant's trademark but Mr. Singh, counsel for the Respondents rightly abandoned this proposed ground when it was pointed out to him that by their pleas of guilty to the charges of contempt of Court ground 10 was not open to them now.

Ground 2 alleges that the fine imposed on the Respondents is harsh and excessive and is wrong in principal (sic).

Ground 3 claims I was wrong in hearing counsel for the Applicant on sentence after counsel for the Respondspondents made submissions in mitigation. I do not propose to comment on the other grounds because they are covered sufficiently in my judgment.

As to ground 2, my fundamereason for refusing to grant a stay of execution was that apart from the general assertion tion in paragraph 11 of the affidavit of the Fourth Respondent that the current drought has resulted in a severe drop in the business of the First Respondent I had no independent evidence before me either on the original hearing or at the present hearing of the financial position of both Respondents. I pointed out that for any application for stay to succeed in a matter such as this, also relevant to the original hearing, I consider it basic that the Respondent would have produced evidence in the form of balance sheets of the First Respondent showing its financial position before and after the commencement of the current drought. Such evidence would have also shown the pre-drought and current position of the assets and liabilities of Bubble Up Investments Limited and I may then have been able to draw favourable inferences in favour of that company which could have resulted in my imposing a lesser fine on it and on the Fourth Respondent. If such evidence was forthcoming, as I consider it should have been if the Respondents wished to persuade the Court to grant a stay, I may have shown more leniency to the Respondents. However I do not propose to speculate as to this here; there simply was no such evidence.

As to the third ground of appeal that I was wrong in hearing counsel for the Applicant on sentencer hearing submissions on mion mitigation by counsel for the Respondents I merely say this that I do not consider the Fourth Respondent is a fool. I have little doubt that he was aware of the fact that by his plea of guilty he could not be cross-examined on any affidavits he filed in these proceedings including his last affidavit of the 4th of June.

In that situation, on the footing that desirable frequently before a Court pronounces sentence toce to hear counsel both for the Prosecutor and the Defendant so that the Court may be better informed, to that end I sought further assistance from counsel for the Applicant at the original hearing in reply to certain matters raised by counsel for the Respondents.

I now refer to some of the cases and authorities cited to me by thties on the application for stay. In this regard I need to d to refer to only one case cited to me by the Applicant which in my judgment provides the answer to the cases cited by the Respondents. This is Witham v. Holloway (1995) 183 CLR 525 in which the High Court of Australia held that as all proceedings for contempt, whether for civil or criminal contempt, must realistically be seen as criminal in nature, all charges of contempt must be proved beyond reasonable doubt. Indeed I do not understand either counsel in this case to argue the contrary. Accordingly when counsel for the Respondents stated that he relied especially on the decision of the New South Wales Court of Appeal in Alexander v. Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 I immediately commented that this case related to a stay in civil proceedings.

The Court held that it may grant a stay of proceedingre the applicant for the stay demonstrates a reason or an a an appropriate case to warrant the exercise of the discretion in his favour; it is not necessary that special or exceptional circumstances should be made out.

Similarly all the other cases cited by counor the Respondents in his written submissions dated the 16te 16th of June 1998 related to civil matters and the law as stated in them was not disputed by counsel for the Applicant.

I do not propose to refer to these cases here; it suffices that they are mentionethe submissions of the Resp Respondents. I mention one final matter: counsel for the Respondents has not referred me to even one authority for the proposition that where a Court has pronounced sentence on a plea of guilty on a charge of contempt that sentence has been stayed by the Court which imposed it.

For these reasons I reject the application for stay of execution.

JOHN E. BYRNE
JUDGE

Cases referred to in Decision:

Alexander v. Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.

Witham v. Holloway (1995) 183 CLR 525.

The following additional cases were referred to in argument:

Commissioner of Taxation v. The Myer Emporium Ltd [1986] HCA 13; (1986) 60 A.L.J.R. 300.

Australasian Meat Industries Employees Union v. Mudginburri Station Pty Limited (1986) 161 CLR 98.

Hinch v. Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15.

Director of Public Prosecutions - Chidiac (1991) 25 NSWLR 372.

Avel Pty Limited v. Multicoin Amusements Pty Limited [1990] HCA 58; (1990) 171 CLR 88.

Doyle v. Commonwealth (1985) 156 CLR 510.

Australian Consolidated Press Limited v. Morgan [1965] HCA 21; (1965) 112 CLR 483.

Attorney-General v. Hislop (1991) 1 QB 514.

Halsbury's Laws of England, 4th Edition, Volume 9.

Izuora v. R. (1953) AC 327 at 335.

O'Shea v. O'Shea and Another; ex parte Tuohy [1880] UKLawRpCh 193; (1890) 15 Ch D 59.

Hometown Motors Ltd and Automart Limited v. Principal Licensing Authority HBJ30/95 - unreported judgment of Pathik J.

Carlton and United Breweries Ltd v. Minister of Customs [1986] NZHC 1031; (1986) NZLR 423.

Linotype - Hell Finance Ltd v. Baker (1992) 4 All E.R. 887.

Bos v. Thompson - unreported decision of Greig J. High Court Wellington 18th November 1986.

Civil Appeal No. 67 of 1990 Reddy's Enterprises Ltd. v. The Governor of Reserve Bank of Fiji - unreported judgment of Tikaram P. dated 9th August 1991.

Hbc0228d.96s