Crystal Clear Mineral Water (Fiji) Ltd v Natural Waters of Viti Ltd [2005] FJHC 699; HBC0325.2004L (23 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0321 OF 2003L

BETWEEN:

CRYSTAL CLEAR MINERAL WATER LIMITED
Plaintiff

AND:

NATURAL WATERS OF VITI LIMITED
Defendant

AND:

FREZCO BEVERAGES LIMITED
Second Defendant to the Counter-Claim

AND:

P. MEGHJI & COMPANY LIMITED
Third Defendant to the Counter-Claim

Mr. J. Apted with Ms. M. Moody for the applicant/plaintiff
Mr. J. Sharma for the defendant

Date of Hearing: 23 November 2005
Date of Judgment: 23 November 2005

EXTEMPORE JUDGMENT

On the 28^th April 2005, I granted leave pursuant to Order 52 Rule 2 of the High Court Rules for the defendant/applicant to apply by way of Inter-parte Notice of Motion for orders of committal against Mohammed Altaaf Jamal. It is the Notice of Motion filed consequent upon that leave that is before the Court today.

That Motion is dated the 2^nd May 2005 and filed on the 4^th May 2005 and seeks an order that Mohammed Altaaf Jamal as director of both Crystal Clear Mineral Water (Fiji) Limited (“Crystal Clear”) and/or as director of Frezco Beverages Limited (“Frezco”) of 70 Grey Street, Mountainview, Nadi be committed to prison for his Contempt of Court upon the grounds set out in the copy statements served on the application for leave to issue the Notice of Motion and further an order of Emma Gho as director of Crystal Clear and/or as director of Frezco of 70 Grey Street, Mountainview, Nadi be committed to prison for her Contempt of Court upon the grounds set out in the copy statement on the application for leave to issue the Notice of Motion.

It is alleged that the contemnors are in breach of orders made by the Fiji Court of Appeal on the 26^th November 2004. Those orders are:

(a) An interim injunction until further order of the Court restraining the respondent whether by its directors, servants or agents or otherwise from marketing its bottled water products in Fiji with the word “Fiji” in the brand label of such products.

(b) This interim injunction is to take effect 28 days from the deliver of the judgment.

(c) This interim injunction is not to prevent the respondent from using the word “Fiji” on the labelling of such products to denote the place where such produce is produced.

The proceedings have come before the Court on several occasions since their commencement in April 2005. Today, when the matters have come before the Court for hearing, the two contemnors have admitted the contempt up until the 18^th March 2005. Having admitted the contempt, they then, with leave, submit to the Court by an affidavit of Mohammed Altaaf Jamal sworn on the 21^st November 2005 various matters in mitigation of the penalty to be imposed on them. In essence, the affidavit alleges that they did not deliberately breach or disregard the injunctive orders of the Fiji Court of Appeal but were at all relevant times led to believe by their counsel that they were able to continue to operate as they had operated and that a stay of the orders of the Fiji Court of Appeal had been granted. It is clear from the affidavit that on and from at least the 22^nd February 2005 if not before they would certainly have had some significant doubt as to the accuracy of the opinion that they previously formed. It is clear that on that date, Mr. Sharma their counsel after discussions with Messrs Munro Leys obtained and conveyed the information that this Stay thought to exist in fact did not entered.

It is also apparent from the affidavit, the Fiji Court of Appeal on the 18^th March 2005 declined the application for a Stay of its earlier orders.

Counsel for the Contemnors submits that in the light of the antecedents and of the admission of the contempt that an appropriate penalty for the contempt is a fine, that it was not a flagrant disregard of the Court’s order and was a breach that came about by virtue of the advice or lack of advice given to or obtained by the defendants.

Counsel for the Applicant submits that it is a significant breach that had a significant monetary gain for the defendant and for the companies they controlled and that it was indeed a blatant breach of the orders of the Fiji Court of Appeal.

Counsel for the Defendants refers the Court to a decision of Mr. Justice Gates in Abbas Ali & Others v Chaudhary & Others – Civil Action No. HBC0061 of 2001L where a penalty of $1,000.00 in default 30 days imprisonment was imposed for a contempt which involved the defendant attempting to enhance his position as a creditor. In addition in that matter, the defendant was ordered to pay $2,000.00 by way of costs.

Counsel for the Defendant also refers the Court to In re Chaudhary – HBM0003 of 1998S which was a criminal contempt where Mr. Justice Fatiaki found the defendant guilty of contempt but imposed no penalty but ordered that he pay costs of $500.00.

It is acknowledged that the contempt in the proceedings now before the Court, is indeed a civil contempt and not a criminal contempt.

Counsel for the Applicant refers the Court to a number of authorities but perhaps most relevantly to Attorney General for Tuvalu and Another v Philatelic Distribution Corp Ltd and Others [1990] 2 All E.R. 216. Here it was held by the Court of Appeal that the directors of companies were indeed liable in circumstances such as contempt before the Court. The defendants here have acknowledged the contempt in any event. In that matter a penalty of £3000 was upheld by the Court.

Counsel for the Applicant also refers the Court to a decision of Mr. Justice Byrne in Carlton Brewery (Fiji) Limited v Bubble Up Investments Limited – Civil Action No. HBC0228 of 1998. In that matter His Lordship at page 10 of the judgment said:

“One of the principle purposes of sentencing is to punish the offender with a view to deterring him from offending again but not so as to crush him and give him no hope for the future. That would simply be vindictive which is not the function of the Courts.”

In that matter His Lordship imposed a penalty of $15,000.00 on the company and a further $15,000.00 on the director and in default imprisonment for a period of 3 months. A period of 7 days was allowed in which to pay the monetary penalties.

In assessing what is an appropriate penalty to impose upon the defendants in this matter, I am cognisant of the admission made albeit that it was made today and I am also cognisant of the antecedents of the two defendants and in addition the circumstances surrounding the breach of the order of the Fiji Court of Appeal. I must take into account the fact that an order of the Fiji Court of Appeal was breached that the breach, of necessity, resulted in financial gain to the companies controlled by the defendants and to the defendant. I am also conscious of the words quoted above in the judgment of Mr. Justice Byrne and it is not the role of the Court as His Lordship said to crush the defendants in circumstances such as this but it is indeed the role of the Court to impose a penalty which is sufficient to act as a deterrent and as a punishment and whilst the penalty that I am about to impose might be considered in the circumstances moderate I indicate to the defendants that should it be that there is any repetition of conduct such as this, that is a breach of any order of this Court or any other Court in this country then I would have no hesitation should the matter come before me of immediately imposing a custodial order.

In the circumstances however the Orders that I propose are:

1. That each of the defendants is fined the sum of Five Thousand Dollars ($5,000.00) in default 2 months imprisonment.
   

2. The fines totalling $10,000.00 are to be paid within 7 days.

3. The defendants are to pay the applicant’s costs as agreed or assessed on an indemnity basis.
   

JOHN CONNORS

JUDGE

At Lautoka

23 November 2005