Basic Industries Ltd v Yasin [2000] FJHC 54; Hbc0237d.96s (6 April 2000)

Fiji Islands - Basic Industries Ltd v Yasin - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

Between:

INDUSTRIES LIMITED

Plaintiff

and

MOHAMMED YASIN

Defendant

G.E. Leung for the Plaintiff

: 1"> S. Samuels for the Defendants

DECISION

This is a summons for directions filed pursuant to Orders 24 and 34 of the High Coules 1988. The action has a as a somewhat unusual history and this application raises for consideration the not altogether easy questions of when the Court will punish for contempt on its own motion and on how far a party in contempt of an order of the Court will be permitted to take a further part in the proceedings.

The writ was issued in June 1996. It is a claim in act and seeks, inter alia, the return of two sums ofms of money together totalling $349,413.00 which the Plaintiff says it lent the Defendant on about 7 September 1995 by paying the sums into the trust account of a firm of solicitors, Messrs Maharaj Chandra & Co.

The Defence was filed on 14 November 1996. The Defendant did not deny that the Plaintiff paid the alleged sum to Maharaj Chandra and Associates but stated (a) that such payment was not admitted as not being within his knowledge and (b) alternatively that the payment was, for reasons given, unrefundable.

On 19 August 1996 a preservation of property applicatio made by the Plaintiff under the provisions of O 29 r 2 (3)2 (3). It sought an order that the owed sum be paid into Court. This application together with a number of other applications not directly relevant to the issues now before the Court came before me for hearing on 4 December 1996. I considered the affidavit evidence and counsels’ arguments. It was not disputed that the sum was being held by Maharaj Chandra & Associates to the order of the Defendant. I concluded that there was a real risk of dissipation of the sum and ordered its payment into Court forthwith. Counsel for the Defendant then sought a stay of my Order. No undertaking was offered by the Defendant and I refused the stay. My Order was perfected on 6 December 1996.

On 9 December 1996 the Dent applied for leave to appeal to the Fiji Court of Appeal against my decision. He also souo sought a stay of my Order pending disposal of the appeal. On 6 February 1997 I dismissed both applications. My written Decision of that date refers. So far as I am aware no application for leave to appeal has been made to the Court of Appeal. No payment has been made into Court.

“The Applicant appears unable properly to handle this application (to commit) which now comes before the Court for a third time. I am not prepared to go on wasting Court time on this application which is dismissed”.

On 3 April 1998 the Plaintiff filed its list of documents. The Defendant filed his list in May. The Plaintiff filed the present application in January 1999.

On 12 May 1999 I pointed out that the proceedings againsormer first Defendant had been discontinued on 15 March buth but that the pleadings had not been amended. I asked Counsel to re-evaluate the position. By 7 July little progress had been made and I also reminded Counsel that the Order of 4 December 1996 had still not been obeyed and neither had an appeal against my Order been filed. In view of the fact that an amended Statement of Claim was about to be filed I adjourned the matter to 19 July and asked Counsel on that day to address me on the right of the Defendant to take any further step in the proceedings (such as filing an amended Defence) until my order had been complied with (see Postulka v. Postulka 34 FLR 82).

By 12 August little had been achieved and I therefore formally requested written submissions to be filed by 15 November. On 22 November the Defendant filed its written submissions. On 23 November Counsel for the Plaintiff told me that he had not prepared a written submission but was “inclined to agree” with the Defendant’s submission which was that the Plaintiff had waived the failure to obey the Order and that it was not for the Court now to intervene.

I wasat all happy with this approach which not only failed to have regard to my request for assi assistance from both Counsel by way of considered written submissions but also appeared to condone what was, on the face of it, a deliberate, flagrant and long continued breach of a plain and unqualified Order of this Court obtained by the Plaintiff in its favour after a contested hearing held to determine whether the Order in question should be made. This was no mere case of an all too routine failure to comply with a minor interlocutory order. In the circumstances I again adjourned the matter and asked for further assistance from Counsel by way of written submissions.

On 3 April 00 I once more heard Counsel. Mr. Samuels whose second written submission iled on 31 March argued thad that the Court should not interfere by acting on the contempt first, because the contempt had been waived by the Plaintiff and secondly, because the committal proceedings having failed the Defendant “should not be subjected to another attempt at prosecuting the contempt because it would infringe the legal principle of double jeopardy”.

On occasion Mr. Leung was no longer inclined to agree with Mr. Samuels’ submissions. Citing Re Jokai Tea Holdings [1993] 1 All ER 630 he suggested that the breach of the order would justify the Defence being struck out. He also very helpfully referred me to Hadkinson v. Hadkinson [1952] 2 All ER 567 as authority for the proposition that the Court will not hear a party in contempt until the contempt has been purged where it is of the view that the contempt is impeding the cause of justice and there is no other means of securing compliance with the Order which has been disobeyed.

As pointed by Romer LJ inHadkinson it is “the plain and unqualified obligation of every person against, or in rein respect of, whom an order is made by a Court of competent jurisdiction to obey it until the order is discharged. In the present case my Order of 4 December 1996 has not been obeyed and has not been discharged either by me or following a successful appeal.

While it is true tha committal proceedings against the Defendant were dismissed it should be remembered that that they were not dismissed because the Court was not satisfied that a contempt had occurred, it plainly had: they were dismissed because of the Plaintiff’s solicitor’s failure precisely to follow the requirements which have to be observed before a contemnor can be punished by committal. In my view the question of double jeopardy does not arise.

It must be borne in mind that proceedings for committal for mpt are merely a means of p of putting pressure on a contemnor to obey the Order of the Court. Proof of the contempt having been committed is a separate matter. In the present case it was neither argued nor suggested that the Defendant had not disobeyed the Court’s Order. I was in fact told on 3 April from the Bar that the money is still in the trust account of Messrs. Maharaj Chandra & Associates.

While it is undoubtedly the case that following waiver the Court will not generally have any further interest in the contempt (see e.g. A.G. v. Times Newspapers Ltd [1974] AC 273, 308)there are some situations in which the breach of the Court’s Order is so flagrant, so deliberate and of such obstinate long standing that to ignore the contempt is to bring the administration of justice into disrepute and the Court itself into derision. In such cases it is not decisive that the contempt has been waived. Thus, in a company case, (In re Grantham Wholesale Ltd [1972] 1 WLR 559) where the contemnor had finally complied with the Court’s Order and no more was asked by the Plaintiff on the motion to commit apart form the costs of the application, Megarry J observed at page 566:

“Let me make it clear that in myment such a statement (by Counsel opening the case) in no w no way fetters the Court in deciding what is the appropriate order to make. It is true that unless the matter is brought before the Court, the Court will not know of the contempt and so will not be able to make any order in respect of it. But I do not think that for this or any other reason the law can be that once the Court is seized of a case of disobedience to an order of the Court, the jurisdiction of the Court is in any way fettered by what Counsel says when opening the matter.… But though the jurisdiction is not fettered, what Counsel says must be borne in mind in deciding what penalty to impose, particularly when what Counsel says is in line with what has been said and done in a number of previous cases”.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> As also pointed out by Megarry J, RSC O 52 r 5 (the English equivalent of our RHC O 52 r 4) specifically preserves the jurisdiction of the High Court to commit on its own motion a person guilty of contempt of Court. And neither is there any constitutional objection to such a deprivation of liberty (see the Constitution of the Fiji Islands 1997, Section 23 (1) (b)).

In view of the stage which this litigation has reached I do not think that merely refusing to hear the Defendant until he has purged himself of his contempt will advance the matter. However I am not prepared merely to watch an Order of the High Court being flouted and take the view that the Defendant’s disobedience is indeed impeding the course of justice. In the circumstances I propose therefore to give the Defendant a final opportunity to comply with my Order. He will have until midday 7 April 00 to pay the full sum into Court. I will hear Counsel again at 9.30 on Monday 10 April and will then decide what further action, possibly including committal, if any, is warranted.

M.D. Scott Judge

6 April 00

HBC0237D.96S