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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 0501 OF 2005
Between:
FISHINVEST (FIJI) LIMITED
Plaintiff
- and –
TAURUS SHIPPING COMPANY LIMITED
1st Defendant
- and –
THE REGISTRAR OF VESSELS
FIJI ISLANDS MARITIME AND SAFETY ADMINISTRATION (FIMSA)
2nd Defendants
CIVIL ACTION NO. 569 OF 2005
Between:
TAURUS SHIPPING COMPANY LIMITED
Plaintiff
- and –
VISTA FISHERIES LIMITED
1st Defendant
- and –
FISHINVEST (FIJI) LIMITED
2nd Defendant
- and -
FIJI ISLANDS MARITIME AND SAFETY ADMINISTRATION (FIMSA)
3rd Defendant
Counsel: Mr. J. Savou for Fishinvest
Mr. V. Kapadia for Taurus
Mr. S.F. Koya for Vista
No appearance for FIMSA
Date of Hearing: 19th January, 2006
Date of Ruling: 27th January, 2006
RULING UPON APPLICATION OF FISHINVEST (FIJI) LIMITED
FOR RECUSAL
[1] On 11th of January 2006 Vista Fisheries Limited (Vista) and Fishinvest (Fiji) Limited (Fishinvest) filed an application in the following terms:
“That:
(a) Justice Coventry recuse himself from hearing this action (569/2005) and its consolidated Action No. 501/2005.
(b) That this action and its consolidated Action No. 501 of 2005 be referred to the Deputy Registrar for reallocation before another Judge.
(c) That the costs of this application be in the cause.
The applicants intend to rely on the affidavit of Mesake Cokanauto filed in support of this application.
This application is made pursuant to the inherent jurisdiction of the court.”
[2] The application was heard on the 19th of January. By that time Vista Fisheries Limited were separately represented. Their counsel withdrew the application on behalf of Vista reserving the option to make it again at a stage when he “had had more opportunity to consider the papers in this case”. He explained he had only been instructed within a day or so of the application hearing date.
[3] There was, in support, an affidavit of Mesake Cokanauto, a Director of Fishinvest and Vista which was dated the 10th of January and filed on 11th.
[4] In essence this is a dispute between two companies as to the ownership of a fishing vessel, “M.V. Rosalina”. Cross injunction applications were made by Fishinvest and Taurus Shipping Company Limited (Taurus) as far as the boat was concerned pending the outcome of these proceedings. Argument was heard on the 24th and 29th of November 2005. On the 30th of November the decision concerning these arguments was orally announced to the parties and brief reasons given. Full reasons were given in writing and sent to the parties on or about the 12th of December.
[5] The matter was summed up in the last paragraph on page 8 of that ruling. I stated “the simple equation is this. There are two strong competing claims to the ownership of this vessel. Each side is accusing the other of dishonest and fraudulent dealing. I must decide whether to grant an injunction restraining the M.V. Rosalina from leaving Suva in the face of substantial expenditure by Fishinvest, with a consequential loss of fishing time and the potential that those losses might not be recovered in damages at the end of the day, should the plaintiffs be successful.
[6] “On the other side of the equation is the claim by Taurus that Fishinvest position is wholly fraudulent and that if the vessel is allowed to leave Fiji waters it will never be seen again.
[7] “In making my decision upon this Ruling on this question I do not formulate any final view of the evidence nor give any indication of which I believe nor any indication of what the court’s finding will be as to the ownership of this vessel at the end of the day. I must purely look at the circumstances as they stand before me now upon this application.”
[8] Upto that point I had set out a brief chronology of events, the arguments of the parties and listed the affidavits that were then before me. I concluded the Ruling by stating the following:
“In these circumstances, I find that injunctions should continue in the broad terms of paragraphs 1 and 2 of the order of the 22nd of November. They will be until further order of the court.
“I further order that Order 3 of my Order of the 22nd of November is continued until the provisions of the following paragraphs are put in place.
“I consider it is in the interest of all parties that the vessel is physically in the hands of either the plaintiffs (Taurus) or a neutral third party, with orders to protect the interests of both the plaintiffs and the first defendants.”
[9] The orders of the 22nd of November reads as follows:
“(1) Immediate effect – M.V. Rosalina to remain tied up at Suva Port and is not to be moved.
(2) That the plaintiffs (Fishinvest) do not sell, mortgage or encumber the vessel in any way.
(3) The plaintiffs maintain the vessel in its current state.
(4) ...”
[10] On the 30th of November, the parties were invited to make submissions as to the precise wording of the Order as a result of that Ruling. After hearing the parties’ submissions the detailed Order dated the 30th of November was made. That included restraints upon disposing of or encumbering the vessel in anyway, that it remain at the jetty in Suva Port, that nothing was removed from it, that it was maintained in its current condition, that an inventory of all plant, equipment and furniture was made by an independent third party, that there be a security guard at the gangway and other ancilliary orders.
[11] On 1st of December 2005 Savou’s Barristers and Solicitors for Fishinvest placed the following notice in The Fiji Times. The Fiji Times is a newspaper with wide circulation within the country.
[12] “Public Notice
To the crew and suppliers and contractors of the fishing vessel
”Rosalina”
Due to an injunction order of Mr. Justice Roger Coventary in the Suva High Court on 30th of November 2005 preventing the fishing vessel “Rosalina” from proceeding to its fishing grounds we regret to advise that all eleven Fijian fishing crew of the Rosalina are hereby laid off until further notice.
Due to the injunction court order of Mr. Justice Roger Coventary the Rosalina cannot go fishing and therefore cannot provide employment at this time.
Suppliers and contractors whose invoices are owing for the Rosalina are to direct payment queries to Messrs. Sherani & Co., Barristers and Solicitors of Suva or the Registrar of the High Court at Suva.
In the meantime we advise all our valued suppliers and contractors and crew of our other vessels that we will remain responsible for payments in respect of our other sea-going vessels.
Savous
Barristers & Solicitors
For
Fishinvest (Fiji) Limited
30th November 2005.”
[13] This notice was brought to the attention of the Court by Mr. Kapadia the solicitor for Taurus Shipping Company Limited on 2nd December at a case progress hearing. He stated, from the bar table, that he was concerned generally by the publication of such a notice and that some of the crew had already visited his offices and the office of the Registrar of the High Court.
[14] Mr. Savou responded that he had placed the advertisement and that it was only done with the intention of informing the crew and suppliers to the vessel of what was happening. Mr. Kapadia expressed his concern about the effect of such notice. The Court pointed out to Mr. Savou that people would get angry with the Judge and Sherani & Co. and the effect is they would call on them about the case. Mr. Savou responded that he only wanted to tell the crew and suppliers what was happening. The Court asked Mr. Savou what would be the effect of the public notice. Mr. Savou responded that there were crew outside (the Court) they were seeking payment of $21.00 per day and had been hired for two weeks. They had not been paid what they should have been paid. He continued that he had no intention of making any further public announcements about the case. It was only intended to notify people. The Court responded that it found that very difficult to accept. Mr. Savou was told that the placing of such an advertisement was unprofessional, that it bordered upon contempt of court and in other jurisdictions might be the subject matter of referral to the professional body concerned.
[15] By letter dated 12th of December 2005 Mr. Savou wrote to the Registrar of the High Court for the attention of Mr. Emosi Koroi, the Deputy Registrar. That letter raised a number of issues many of which had been argued in the injunction hearing. Complaint was made about a lack of fair hearing and that no written ruling had been received setting out reasons for the injunction. The possibility of an appeal was being considered.
[16] By letter dated 13th of December Mr. Savou informed the Chief Registrar that the written copy of the legal ruling had been placed in his folder “yesterday afternoon (12th December 2005)”.
[17] By letter dated 13th of December the Chief Registrar replied:
“I refer to your fax of 12th instant to the Chief Registrar and the same is placed before the Hon. Mr. Justice Coventry.
“I have been directed by the Judge to advise you that the letter should not have been marked attention to the Deputy Registrar.
“Further more, if any matter to raise, make further application to Judge and that will be heard.”
[18] On 15th December the Chief Registrar informed Mr. Savou that “The Judgment was written before your fax could reach the Hon. Mr. Justice Coventry”.
[19] On 15th of December Mr. Savou again wrote to the Chief Registrar stating that he had perused the Ruling, making complaint about various matters therein and concluding “I am instructed to request that if a fair and impartial and unprejudiced hearing over this matter cannot eventuate, that it be reallocated.”
[20] By letter dated 15th of December Mesake Cokanauto wrote to the Chief Justice raising these matters with a copy of his letter to the Chief Registrar. The various complaints were set out again in the same terms and a request was made that the case be reallocated to another judge.
[21] By letter dated the 21st of December the Deputy Registrar informed Mr. Cokanauto that
“I have been directed to advise that it is not appropriate to reassign cases administratively after a judge has been seized of a matter and had delivered a ruling on it. The request must therefore be made to the Judge to disqualify himself in the proper manner.
As for the “factual distortion” claim, it can only be corrected or properly addressed through an appeal.
By a copy of this letter your legal counsel is informed.
I hope the above should be able to direct the proper action for you to take.”
[22] On the 21st of December the consolidated cases came before me for further progress directions. Mr. Savou’s letters of 12th and 15th of December were before the Court.
[23] At that hearing I told Mr. Savou as follows: “If he wishes Coventry J. to recuse self or disagrees with any ruling or order this application/appeals/leave to appeal should be made in the proper way. He is not to write to the Registry as per his letters of 12th and 15th/12/05. Informed he is bordering on contempt of court. No action being taken at this stage.”
[24] This is the background against which the motion, filed on 11th January, was heard on the 19th of January. It was supported by the affidavit of Mesake Cokanauto. I will deal in detail with the specific points raised in that affidavit.
[25] In argument Mr. Savou referred in detail to the affidavit of Mr. Cokanauto, stated that a fair and impartial hearing in this matter could not be held before me and that application was made for me to recuse myself from these two consolidated matters.
[26] Mr. Kapadia for Taurus opposed the application. He stated in his view there was no basis whatever for it, that care had to be taken that judges were not intimidated into recusing themselves for no valid reason and that ‘judge shopping’ would eventuate if this kind of application was allowed.
[27] Applications such as this must be approached by any judge with the greatest of care and sensitivity. In effect the judge’s conduct is being called into question, yet he or she is being required to rule thereon. Whilst the utmost attention and objectivity is required, it is also important that a judge does not recuse himself for reasons which fall short of the stipulated test. To do so would mean that any party who felt his case was not going as he wished could mount such an application, delay the proceedings and obtain a hearing before another judge.
[28] It is important also to note that this application is being made at the interlocutory stage, before the commencement of the trial.
[29] Mr. Savou has informed the court that FIMSA were served and notified of this application but have not appeared. Their presence, of course, will be required at further directions hearing.
[30] The Supreme Court of Fiji in Criminal Appeal No. 2 of 1997, Amina Koya, Appellant, against The State Respondent considered the question of bias. That was an appeal against conviction and sentence in a criminal case. I do not consider the test is any different for a civil case.
[31] At page 12 the court stated “There is some controversy about the formulation of the principle to be applied in cases in which it is alleged that a judge is or might be actuated by bias. In Australia, the test is whether a fair-minded but informed observer might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case (authorities cited). In England, however, the House of Lords in R. v. Gough [1993] UKHL 1; (1993) A.C. 646 decided that the test to be applied in all cases of apparent bias involving justices, tribunal members, arbitrators or jurors is whether in all the circumstances of the case there is a real danger or real likelihood, in the sense of possibility, of bias. In a later case, Webb v. The Queen (1994) 81 C.L.R. 41, which concerned a juror, the High Court of Australia, despite Gough, decided that it would continue to apply the reasonable apprehension or suspicion of bias test, and held that in the circumstances of the case a fair-minded but informed observer would not have apprehended that the juror or the jury would not have discharged their task impartially.
[32] “Subsequently, the New Zealand Court of Appeal, in Auckland Casinos Limited v. Casino Control Authority (1995) 1 N.Z.L.R. 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether reasonable or informed observer would reasonably apprehend or suspect bias.”
[33] The Court then went on to consider the facts and arguments in that case and then at page 18 concluded “in all the circumstances, it cannot be said that there was a danger that the trial was affected by bias or that a fair-minded observer, knowing the facts, would apprehend or suspect that the trial was affected by bias. And, at the end of the day, we have a trial which appears in all respects to have been conducted fairly and impartially”.
The appeal against conviction on that and the other grounds was dismissed.
[34] I respectfully apply the test as to whether or not “it can be said that there is a danger that these proceedings and the trial might be affected by bias or that a fair-minded observer, knowing the facts, would apprehend or suspect that the proceedings or trial might be affected by bias”.
[35] I now turn to the points raised in argument by Mr. Savou.
[36] He relies upon the affidavit of Mesake Cakanauto. It should be noted that this is the first time in these proceedings that he has given an affidavit. The vast majority of the affidavits and information given in the affidavits on behalf of Fishinvest have come to the Court from Mr. Pavel Mourgun.
[37] It is important to make the general comment at this stage that most of what Mr. Cokanauto sets out in his affidavit in support of the application relates to matters which have been relaid to him. He has not attended the proceedings. It must be presumed that the matters have been relaid to him by his counsel, Mr. Savou.
[38] It is also important to note that, throughout the whole currency of these cases, at no stage has leave been requested to appeal from any order made.
[39] Further, I informed Mr. Savou on the 21st of December that if he considered I should recuse myself from the case or he disagreed with any ruling or order then applications, appeals and leave to appeal should be made in the proper way. The motion being considered was filed on 11th of January.
[40] Paragraph 1 of Mesake Cakanauto’s affidavit states that he is a Director of Fishinvest and Vista.
[41] Paragraph No. 2 states “On the 22nd of November 2005 when the matter was first heard before Mr. Justice Coventry I am advised by my counsel and verily believe that Mr. Viren Kapadia of counsel for Taurus Shipping Limited told my counsel outside Chambers, after the conclusion of the initial hearing on that date, that “the Judge’s mind has now been poisoned against your client”. “
[42] This cannot in anyway assist the application. It is a remark allegedly made by counsel representing Taurus Shipping to counsel representing the company of which Mr. Cokanauto is a Director.
[43] In paragraph 3 complaint is made that the Judge declared the advertisement in the Fiji Times of the 30th of November “unprofessional and questioned our integrity and integrity of counsel in procuring the advertisement”.
[44] The response of the court when this matter was raised on 2nd of December is set out above, Mr. Kapadia argued that it goes no further than a Judge making comment in relation to the action of the lawyer of one party after a ruling did not go as that lawyer had argued for. He further argued there was no questioning of the integrity of the company or its directors.
[45] In the course of cases from time to time Judges will make clear to a counsel that their conduct in a particular matter is not correct or is questionable. This does not indicate any bias or prejudice, nor, in the absence of specific findings, does it query the integrity of counsel or client. No finding was made as to whether it was a deliberate attempt at a nefarious course or a misguided one.
[46] The Public Notice of the 30th of November stated “the suppliers and contractors whose invoices are owing for the Rosalina are to direct payment queries to Messrs. Sherani & Co., Barristers and Solicitors of Suva or The Registrar of the High Court in Suva.” In my judgment any fair-minded and reasonable observer would come to the conclusion that to place such an advertisement in a national daily newspaper following upon the Ruling and injunctions of the 30th of November might well fall into the category of “unprofessional” and would also conclude that such conduct would be the subject matter of referral of any individual to his or her professional body.
One inference from the wording of the Notice is that Fishinvest’s Suppliers and the crew of the boat in question are being told they will not or might not be paid, here are the names of those responsible, you must look to them.
[47] In my judgment, a fair-minded observer, knowing the facts would do no more than come to the conclusion that the Judge had informed counsel that a particular act he did in the course of the case should not have been done and the consequences that could flow from that act. It cannot be inferred from this that any kind of prejudice or bias existed against that counsel or his client. In the circumstances I reject this ground.
[48] Paragraph 4 states that “when we wrote to the Deputy Registrar on 12th December 2005 asking for a written ruling on the order of the Judge of the 30th of November 2005, the actions of our solicitor were described by the Judge as bordering on contempt and unprofessional and unethical and we were condemned for writing to the Deputy Registrar”. The response to Mr. Savou’s letter of 12th December was The Chief Registrar’s letter of the 13th of December, written at my direction. That letter did no more than point out the correct procedure.
[49] On the 21st of December Mr. Savou was instructed to follow the proper procedures, he was instructed not to write to the Registry in the terms of his letters of the 12th and 15th of December and he was informed that his conduct was bordering upon contempt of court but that no action would be taken at that stage.
Mr. Savou is a qualified lawyer and not a litigant in person. He knows the procedures of the Court and in particular those for appeal and recusal of judges. He had been reminded of these by earlier letters from the Court.
[50] In my judgment given the failure of Mr. Savou to follow the proper procedures and the way in which he failed to do so, a reasonable and fair-minded observer would not apprehend any bias or possible bias when Mr. Savou was being told to follow the correct procedures and that his conduct was bordering upon contempt of court.
[51] Paragraph 5 of Mr. Cokanauto’s affidavit states that “The Judge also declared that our company, Fishinvest (Fiji) Limited was in liquidation and owed monies to the Official Receiver, but this is not true ...”
[52] This paragraph apparently refers to what was said in the Ruling of the 30th of November. First, on the face of the affidavits then before the court, there was evidence that Fishinvest was in liquidation and owed money to the Official Receiver. Apparently, a stay of winding up had been granted on terms which had not been complied with. The Court was informed from the Bar Table that monies had been paid to the Official Receiver the very morning of one of the hearings thereby placing a stay upon the winding up. Mr. Cokanauto has exhibited a copy of a letter of the Official Receiver dated 10th January 2006. It is now an open question as to when the stay in the winding up was effective.
[53] In any event, it is clear from a plain and ordinary reading of my Ruling of the 30th November that no finding was made as to whether or not Fishinvest was in liquidation. The Ruling set out the arguments of the parties. At page 9, paragraph 2 I stated “in making my decision upon this ruling on this question I do not formulate any final view of the evidence nor give any indication of which I believe nor any indication of what the court’s finding will be as to the ownership of this vessel at the end of the day”.
[54] Accordingly in my judgment a reasonable and fair-minded observer could not begin to perceive bias on this issue. Further, had there been any substantial or important errors then these could have been pointed out and reconsideration requested or alternatively an appeal lodged or leave to appeal requested. This was not done.
[55] Paragraph 6 states “On the basis of the wrong and prejudicial ruling that we are in liquidation, the Judge then ruled that he was minded to order costs against Fishinvest (Fiji) Limited of $20,000.00.” This issue of costs was not referred to by Mr. Savou in argument before the court and I presume this point is not pursued. In any event, it is difficult to see where on the face of the papers this allegation has come from. Reference was made in argument to the Ruling page 10, last paragraph. This does not begin to substantiate the complaint.
[56] Paragraph 7 of the affidavit states “When the plaintiff filed its Statement of Claim against us in this matter we were only given seven days by the Judge to file our defence, and not the 28 days permitted by the High Court Rules and as a result the Vista Fisheries Limited has been unable to consult an independent solicitor to appear on its behalf and defences for Vista Fisheries Limited Fishinvest (Fiji) Limited have had to be prepared by one solicitor within seven days”.
[57] Vista Fisheries, which has directors in common with Fishinvest, became separately represented a day or two before this application. Uptil then Mr. Savou had represented Fishinvest and Vista. He has had conduct since commencement on 5th October 2005. The issues raised and requiring defences in 0569/05 are almost entirely identical to the ones addressed in the affidavits filed since 5th October in 0501/05.
[58] Further, from the affidavits and arguments put before the Court it has been clear that Fishinvest were deeply concerned about the loss of fishing time as a result of the vessel being ordered to remain in Suva Port. This has been a dominating feature in all their affidavits and arguments until this particular of Mr. Cokanauto. It was substantially but not wholly as a result of the representations of Fishinvest that an expedited timetable was ordered and that hearing dates of the 1st, 2nd and 3rd of February were fixed. Two other cases were moved from my list to accommodate this case. One of the principal reasons for doing this was as a result of Fishinvest’s representations about how much would be lost with the passage of time.
There has been no application to vacate the trial dates of 1-3 February and seek later dates.
[59] In my judgment a fair-minded observer would come to the conclusion that this particular ground contradicts the very way in which Fishinvest have conducted their case up to this time. Vista has not pursued this application.
[60] Paragraph 8 and 9 deal with a letter of complaint sent to the Chief Justice and the response from the Deputy Registrar instructing Mr. Cokanauto to make application “to the Judge to disqualify himself in the proper manner”. Reference was made to the suggestion of “factual distortion” and Mr. Cokanauto was told that this could only be corrected or properly addressed through an appeal. His legal counsel was informed by copy letter.
[61] Paragraph 10 is a reiteration and summation of some of the earlier points.
[62] Paragraph 11 is the broad request for myself to recuse myself from hearing this matter and to put it for reallocation to another Judge.
[63] During the course of argument of various other points in support of those raised in the affidavit of Mr. Cokanauto were advanced by Mr. Savou. These can be addressed by first pointing out that when a Judge sets out the various arguments from parties in a Ruling then it is no more than that. No findings are being made. Second, that the expedition in this case has been primarily at the instigation of Fishinvest Limited.
[64] Finally, it is right that I should apply the test to all the complaints put together. It might be that one or two complaints on their own will not substantiate an application, when a collection of points together might raise an apprehension of bias. Again, doing this as objectively as I can when all points raised by the applicant are taken at their highest I am unable to accept they meet the test set out in Koya v. The State.
[65] Accordingly this application is dismissed. I will hear the parties on costs. I will also hear the parties concerning any remaining directions which are required for the purposes of an effective trial date starting on the 1st of February.
(R.J. Coventry)
JUDGE
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