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High Court of Fiji |
IN THE HIGH COURT OF FIJI
FAMILY DIVISION
AT LAUTOKA
IN THE WESTERN DIVISION
HBM No. 65 of 2008L
D K
Plaintiff/Respondent
AND:
M R
Respondent/Applicant
AND:
ATTORNEY-GENERAL OF THE REPUBLIC OF THE FIJI ISLANDS
Representative of the Child
AND:
HUMAN RIGHTS COMMISSION
Amicus Curiae
Counsel for Plaintiff: Mr K. Vuataki
Counsel for Respondent: Mr S. Sharma
Counsel for Attorney-General as Representative of the Child: Ms P. Prasad
Counsel for Human Rights Commission as Amicus Curiae: Dr S. Shameem
Dates of Hearing: 6 February 2009, 11 February 2009, 2 March 2009
Date of Judgment: 30 March 2009
JUDGMENT (No 3)
Alleged failure to comply with Orders; Alleged refusal to accept service of Orders; Personal service of Orders specifically requested by Counsel; Application for contempt; Application for hearing in absence of party; Party represented by Counsel; Party advises inability to be present as overseas; Party has responsibilities to aged and ill mother; Party unable to advise date of return to Fiji; Principles relating to contempt of Orders; Contempt rules must be strictly complied with; Particularisation & lack of ambiguity of Orders essential; Penal endorsement required; Time limits to be complied with; Criminal standard of proof; Principles where child involved; Whether rules differ where Orders relate to child’s rights; Reference to whether principles differ re Orders vs. undertakings; Principles to be applied/steps to be followed vis-à-vis contempt; Orders 45 & 52 Supreme Court Rules 1988; Family Court Act 2003 – re children; s. 196 – Contempt; Part XIII – ‘Enforcement of Orders’
Ali v. Chaudhary [2004] FJHC 533; HBC0061.2001L (29 March 2004)
Attorney-General v. Staffordshire County Council [1905] UKLawRpCh 21; [1905] Ch 386 (16 December 1894)
Attorney-General v. Walthamstow Urban Council 11 TLR 533
BP South West Pacific Ltd v. Pratap [2004] FJHC 374; HBC0433.1996L (23 February 2004)
Bale v. Fiji Fish Company Ltd (No 2) [1998] FJHC 143; Hbc0146d.97s (23 October 1998);
Barclays De Zoete Wedd Securities ltd and Ors v. Nadir (1992) TLR 141 (28 February 1992)
Bidesi v. Fotofili [1992] FJHC 25; Hbc0579j.91s (14 July 1992)
Callow v. Young (1886) 55 LTR 543
Carlton Brewery (Fiji) Ltd v. Bubble Up Investments Ltd [1998] FJHC 68; Hbc0228x.96s (22 May 1998)
Carlton Brewery (Fiji) Ltd v. Orange Bubble-Up Company [1991] FJHC 38; Hbc0150j.89s (27 May 1991)
Carlton Brewery (Fiji) Ltd v. Western Bottling Company Ltd [1997] FJHC 171; Hbc0228j.96s (13 November 1997)
Chand v. Chandar [2003] FJCA 10; ABU0021U.2002S (28 February 2003)
Chiltern District Council v. Keane [1985] 1 WLR 619 (15 March 1985)
Coral Sun Ltd v. Fiji Sugar and General Workers Union [2004] FJCA 5; ABU0006.2004S (19 March 2004)
D v. A&Co [1900] UKLawRpCh 22; [1900] 1 Ch 484 (6 February 1900)
DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 1) (HBM No. 65 of 2008L, 3 February 2009)
DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 2) (HBM No. 65 of 2008L, 11 February 2009)
Dee Cee’s Bus Services Ltd v. Credit Corporation (Fiji) Ltd [2003] FJHC 102; HBC0480D.2000S (2 May 2003)
Duffield v. Elwes; In re Chambers [1840] EngR 416; (1840) 2 Beav 268 (11 February 1840)
Favard v. Favard (1897) 65 TLR 664 (21 December 1896)
Fong Sun Developments Ltd v. Minson Fiji Ltd [1997] FJCA 30; Abu0041u.96s (15 August 1997)
Gagnon v. MacDonald (1984) TLR 631 (14 November 1984)
Gavidi v. Native Land Trust Board [2008] FJHC 24; HBC222.2007 (29 February 2008)
Gordon v. Gordon (1946) TLR 217 (21 January 1946)
Harmsworth v. Harmsworth [1987] 3 All ER 816 (1 July 1987)
Hussain v. Hussain [1986] 2 WLR 801
Hyde v. Hyde [1803] 1 Ch 252; 9 TLR 108; [1888] P 166 (6 June 1888)
In re Bramblevale Ltd [1970] 1 Ch 128 (18, 21 July 1969)
In re C (A Minor) (1985) TLR 622 (15 November 1985)
In re Evans; Evans v. Noton [1892] UKLawRpCh 178; [1893] 1 Ch 252 (30 November 1892)
In re Oddy; Major v. Harness [1906] 1 Ch 92 (20 December 1905)
In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972)
In re Tuck; Murch v. Loosemore [1906] UKLawRpCh 53; [1906] 1 Ch 692 (2 April 1906)
Iberian Trust, Limited v. Founders Trust & Investment Company, Limited [1932] 2 KB 87 (26 February 1932)
Kaliova Masau of Ekubu Village and Ors v. Attorney General of Fiji and Ors (Civil Action No. HBC 120 of 2007L, No. 48/2007, 19 April 2007)
Kennard v. Cory Bros & Co Ltd [1922] 1 Ch 265:
Kumar v. Ram [2001] FJHC 30; HBM0026d.200s (30 May 2001)
Kumar v. Ram [2001] FJHC 70; Hbm0026s (19 September 2001)
Kumar v. Ram [2001] FJHC 94; Hbm0026x.200s (28 September 2001)
Kumar v. Vijayantimala [2003] FJHC 53; HBA0005J.2000L (8 October 2003)
Linnett v. Coles [1986] 1 ALL ER 652
McIlraith v. Grady [1968] 1 QB 468 (5 July 1967)
McKeown v. Joint Stock Institute, Limited [1899] UKLawRpCh 49; [1899] 1 Ch 671 (23 March 1899)
Mander v. Flacke [1891] UKLawRpCh 129; [1891] 3 Ch 488 (17 July 1891)
Merman-Lenglet and Anor v. Henshaw (1992) TLR 555 (23 November 1992)
Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 46; ABU0011&Abu0011A.2004L (22 April 2005)
O’Donovan v. O’Donovan [1955] 1 WLR 1086 (13 July 1955)
PA Thomas & Co & Ors v. Mould & Ors [1968] 2 QB 912 (20 December 1967)
Petty v. Daniel [1886] UKLawRpCh 219; 34 ChD 172
Phillips v. Phillips (Unreported, 23 May 1955) – Note [1955] 1 WLR 1087
Pickering v. Murphy [1997] FJHC 191; Hbc0447d.97s (28 November 1997)
Postulka v. Postulka [1988] FJHC 7; [1988] 34 FLR 82 (3 May 1988)
R. v. Sheppard (1981) AC 394
Re Bramblevale Ltd [1970] 1 Ch 129
Rex v. Lambeth County Court Judge & Jonas (1887) 36 WR 475; 4 TLR 138, DC
Redland Bricks Ltd v. Morris & Anor [1970] AC 652 (13 May 1969)
Regina v. Shokoya (1992) TLR 284 (10 June 1992)
Rewa Co-op Diary Co Ltd v. Eagle Ridge Investment (Fiji) Ltd [2007] FJHC 112; CA No 188 of 2004 (9 March 2007)
Shah v Rice [1999] FJCA 57; AAU0007u.97s (12 November 1999)
Shalini v. Basanti [2003] FJHC 63; HPP0036j.1999s (27 August 2003)
Singh v. Kiran [2002] FJCA 80; ABU0018U.2001S (29 November 2002)
Stonor v. Fowle [1906] 1 CH 682:
Justice AHCT Gates, Contempt in Civil Proceedings, Paper presented to Continuing Legal Education – Judicial Seminar, 28 March 2003, Suva
1. Background
This is an application for contempt made by the Respondent to the substantive proceedings, Ms M R. The hearing to which the matter relates occurred on 3 March 2009. However, hearings relevant to the matters in issue occurred on 8 December 2008, 30 January 2009, 3 February 2009, 6 February 2009 and 11 February 2009. Two judgments have already been provided in relation to various matters canvassed by the parties in earlier hearings, namely DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 1) (HBM No. 65 of 2008L, 3 February 2009) and DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 2)(HBM No. 65 of 2008L, 11 February 2009) Additionally, Orders were made on 8 December 2008, 30 January 2009 and 6 February 2009.
1.1 The Orders of 6 February 2009 were made ex parte. As advised on that day, and as indicated on the Orders, consistent with authority it is not the practice of this Court to hear matters ex parte: Kaliova Masau of Ekubu Village and Ors v. Attorney General of Fiji and Ors (Civil Action No. HBC 120 of 2007L, No. 48/2007, 19 April 2007) However, in light of the urgency of the application and that the rights of a child are involved, namely G M L K, the Court entertained the application ex parte. That the substantive application by Mr K, the Plaintiff in that application, was listed for 12.00 noon on 11 February and that Mr K’s Affidavit at the hearing on 3 February 2009 confirmed it was not his intention to leave Fiji until 12 February 2009 meant that the inter partes hearing could proceed with expedition on 11 February 2009 and with no practicable disadvantage accruing to Mr K.
1.2 The substantive proceeding is as to the question of jurisdiction:
1.3 G K was born on 11 June 2003 in the US, her parents living there at the time. Her father, D K, the Respondent in this application, is a citizen of the US. Her mother, M R, is a citizen of Fiji. The marriage broke down whilst the couple were living together with their daughter in Fiji. As a consequence, legal action was initiated in the Family Magistrates Court and the matter subsequently came to the High Court.
2, Orders of 3 February 2009
The Orders arising out of the judgment of 3 February 2009 were:
ORDERS
2.1 Personal service upon Mr K was provided for in the Orders at the request of his Counsel: at that time, severe flooding had occurred recently in and around Nadi, where Mr K’s Counsel’s office is situated and Ba, where Mr K was living. That circumstance had inhibited Mr K’s Counsel in his travelling to and from Nadi and Ba and also in his office arrangements at Nadi. Hence, Counsel’s wish to have Mr K personally served to ensure that the Orders reached him expeditiously.
2.2 It was in relation to service of those Orders that the application for contempt was made.
3. Ex parte Application of 6 February 2009
On 6 February 2009 a hearing was scheduled in Suva with Counsel for Ms R appearing on video link from Lautoka High Court. Upon hearing from Counsel for the Applicant/Respondent in the application for ex parte Orders, the following Orders were made:
3.1 Those Orders were based in the imperative requirement that G K’s status in Fiji be and remain lawful. As the judgment in DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 1) (HBM No. 65 of 2008L, 3 February 2009) said:
The evidence is that [G K’s] passport and visa expire on 10 February 2009. Should Mr K, as he attests, wish to leave Fiji on 12 February 2009 taking G K with him, but without ensuring renewal of passport and visa, then she would be illegally in Fiji for the period between expiration and departure. This is an extremely serious matter. It is serious in and of itself, and its implications for G K in the future are serious also. A person who overstays a visa can be in extreme difficulty in seeking re-entry into the country of overstaying. Whilst it is or may be doubtful that action would be taken explicitly against her for overstaying in the present time – she being a minor and a child of some five years of age only; there can be little doubt that a record of this overstaying would be likely to be retained and may therefore cause an impediment to her travel to Fiji in the future. She would or could be in a position of having to declare an ‘overstaying’ status in respect of any application for entry and visa to other countries.
This Court should not allow such an imposition upon a child and in particular this child, when the Court can take steps to prevent this: at paras [5.2]-[5.3].
3.2 With Mr K in possession of G K’s passport and material before the Court in relation to which submissions were made by Counsel as to the implications of an attested unwillingness to receive service of Orders going to the procedure for ensuring her passport would or could be renewed and her visa status regularised, this Court considered it appropriate to issue the Orders of 6 February 2009, so that an inter partes hearing could be held on 11 February 2008. Were Mr K not to comply with the Orders of 3 February 2009 the likelihood arose of G K’s passport expiring, with her right to remain in Fiji not being underpinned by a visa. That carried the risk of her thereby becoming an ‘overstayer’ with the further risks articulated in DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 1) (HBM No. 65 of 2008L, 3 February 2009). The alternative was for Mr K to take steps consistent with G K’s right to passport renewal and regularisation of her status in Fiji, prior to the hearing on 11 February 2009.
4. Inter Partes Orders of 11 February 2009
On 11 February 2009, submissions by all parties culminated in judgment delivered that day: DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 2) (HBM No. 65 of 2008L, 11 February 2009), with the following Orders:
ORDERS
The Respondent has refused to comply with High Court Orders of 3 February 2009.
5.1 The Orders made by the Magistrates Court and referred to in Order 1 of the 11 February Orders were:
Order of 16 December 2005
Orders of 25 January 2006
(1) The Respondent [Mr K], his servants and agents be restrained by injunction from taking or sending or attempting to take or send the child namely G M L K born on the 11th day of June 2003 from the Fiji Islands.
(2) The Court order has been extended indefinitely.
5.2 Amongst other matters, as to G K’s passport, in DK and MR and Attorney-General of the Republic of the Fiji Islands and Human Rights Commission (No 2) (HBM No. 65 of 2008L, 11 February 2009) it was noted:
When the matter came before the Court on 11 February 2009, Mr K’s Counsel advised that the passport had been provided to the United States (US) Embassy. However, Mr K maintains a position of not wishing to take any steps (other than having the passport handed to the US Embassy) to enable the child’s passport to be renewed. Counsel said that Mr K was leaving the matter in the child’s mother’s hands.
In accordance with the Court’s invitation made by the Orders of 6 February 2009, a representative of the United States Embassy was present. This was of considerable assistance to the Court: he advised that an application for passport renewal can be made by one parent alone, if that parent provides a Statutory Declaration indicating the reasons why consent and signature or authority of the other parent to be provided. The representative advised the Court that no assurance can be given as to the outcome or possible outcome of such an application.
That matter having been stood down so that the US Embassy representative could seek further advice, he returned to advise the Court that the renewal of the passport by the Embassy in Fiji would require signatures (and consent) of both parents. If that were not forthcoming, the matter would have to be ‘referred to Washington’ from whence an answer would be able to be received, through the use of e-mail, within about a week. This left the Court and the parties in the position where it remained unknown whether the passport would be renewed upon the presentation of documentation by the mother alone, together with the explanatory Statutory Declaration: at paras [2.2]-[2.4]
6. Absence from Scheduled Contempt Hearing – 3 March 2009
On the affixed hearing date, 2 March 2009, all parties were represented by Counsel. As it transpired, however, Mr K was not present for he remained in the US. An Affidavit filed by his Counsel stated:
I, D K, declare that due to the current ill health of my elderly mother (doctor’s letter attached) my indefinite presence will be required in Chicago, Illinois, to attend to her care. This will preclude my appearing before the court for my hearing scheduled for March, 2009. I will further advise the court when her condition is sufficiently improved to allow the appearance to be rescheduled.
I hereby proclaim that the attached diagnosis of my mother’s condition of health by her attending physician, Dr Sue Lee is factual and authentic.
Signed this 26th Day of February 2009.
6.1 Then appears Mr K’s signature together with that of a witness being a Notary Public in and for the State of Illinois in the US, residing at Chicago, whose appointment is noted as expiring 18 February 2001. The Affidavit is headed ‘Affidavit of Ill Health’ and is stamped with the ‘Official Seal’ of Joanna Iller, Notary Public.
6.2 The attachment is headed ‘Advocate Health Centers’ at an address (fully stated) in Chicago, Illinois, together with telephone number. Signed ‘Sue Lee MD, Internal Medicine’, it is dated 25 February 2008, the subject line stating:
Re: J K
DOB: 11/02/1922
Dear Sir or Madam,
Ms K is under my care for Hypertension, Herpes Zoster, and Atrial Fibrillation. Due to her advanced age and accompanying medical conditions it is necessary that her son Daniel assist her in activities of daily living. Therefore, he will not be able to his court date scheduled on 03/03/2009 to Lautoka, Fiji. He will be assisting his mother until further notice.
Thank you in advance for your time and understanding.
6.3 Counsel for Ms R then asked that the application for contempt be heard in Mr K’s absence – it being apparent from the Affidavit that were the Court to await Mr K’s return, that may be some time away and, in any event, is uncertain. One of the matters relevant at the time was that Counsel for Ms R had sought the hearing on the substantive application as to jurisdiction be deferred until after the contempt proceeding had been concluded.
6.4 The Court’s being unprepared to hear the contempt proceeding in Mr K’s absence on that day, in the event the substantive hearing did - with agreement of all parties through their Counsel – go ahead. Counsel for Ms R received instructions in person to proceed, and the matter was stood down expressly for Counsel for Mr K’s seeking instructions by telephone from his client as to whether Mr K was agreeable to the substantive application being heard in his absence.
6.5 Counsel for Ms R did, however, request that the Court make a determination as to whether at a date to be determined the contempt application could be heard, notwithstanding Mr K’s possible or probable absence.
7. Application for Contempt
The original Application was made ex parte on Form 12 of the Forms applicable for Family Magistrates Court and Family High Court proceedings. It was filed in the Family Division of the High Court by Ms R as Applicant, naming Mr Daniel Andrew K as Respondent, with addresses of Ms R and Mr K inserted together with Mr K’s address for service naming that of his Counsel at Nadi.
7.1 A Form 7 Application (Contempt) was filed subsequently, with the requisite information about the Applicant and the Respondent (as earlier). It sets out in Part C the ‘Details of the alleged contempt and evidence in support’, first providing that the date, time and place upon which the matter being cited as contempt occurred:
Date: 4 February 2009 Time: 3.52-5.00pm Place: Naidrodro, Ba
Statement of the alleged contempt
The Respondent refused to accept personal service of the High Court Orders dated 3rd February 2009.
The High Court Orders specifically stated that personal service be effected on the Respondent.
The Respondent knew or ought to have known about the service of the Orders on him since his counsel had made an application in court on 3rd February 2009 asking that orders be made for personal service on his client.
The Respondent has refused to comply with High Court Orders of 3 February 2009.[1]
State the facts on which you rely to support the allegation set out in item 5
The Applicant relies on the Affidavit of Service of Josevata Taucilagi dated 5th February 2009 which explains the circumstances leading to the refusal by the Respondent to accept service.
7.2 Going to the substance of attempted service, the Affidavit of Service says Mr Taucilagi is ‘able to identify the person served because ‘I know the person’ and in Part D – ‘Service by hand’ states:
I attempted to hand the documents listed in item 3 to the person named in item 2 on 0-4/02/09 from 3.52 to 5.00 PM at Naidrodro, Ba. (place). The person refused to accept the Orders dated 3rd day of February 2009. As I entered into his compound, I saw him standing on the veranda of his house. When he saw me coming he then ran to the back of the house. I called out his name, there was no answer. I went around the house to look for him but nobody was there. I saw the grass moving and I went to check and saw him hiding in the drain. I called his name again, he stood up, jumped to the other side of the drain and was walking to the cane field. At that time he uttered the following words to me: "I am advised by my Lawyer not to accept anything from Legal Aid". (Emphasis in original)
7.3 ‘Item 2’ recites the ‘particulars of the person [attempted to be] served as being ‘Daniel Andrew K’, address ‘Naidrodro, Ba’. Item 3’ attests to the documents (attempted to be) served being:
Orders dated 3/2/09 issued by High Court of Fiji. Enclosed herewith.
7.4 The Affidavit of Service is signed by Mr Taucilagi on 5 February 2009 and witnessed by Osea Ravukivuki, Commissioner for Oaths.
7.5 Ms R has provided an Affidavit in Support, which in addition to the necessary formalities and annexure of various exhibits including the High curt Orders of 3 February 2009 and Affidavit of Mr Taucilgi, states:
2. In the morning of 4th February 2009, my solicitor Mr Sunil Sharma of the Legal Aid Commission received a copy of the Orders of the High Court dated 3rd February 2009 via facsimile.
3. I have received a copy of the above mentioned Court Order[s] from my solicitor and I have read and understood the same. I am happy and wiling to comply with all that I have been ordered to do by the Court ...
4. UPON receipt of the Orders, my solicitor wrote a letter to Messrs Vuataki Law, Counsel for [Mr K] informing him about the need for his client to avail himself in the office of my solicitors and attend to the needful. The letter also had enclosed with it a copy of the Instruction Sheet in respect of the application for a US passport. The reason for enclosing the Instruction Sheet was to allow Mr K to provide the special requirements of the US Department of State and to comply with it expeditiously. The letter dated 4th February 2009 was delivered to Messrs Qoro Legal Agent for the Vuataki Law who acknowledged receipt of the letter ...
5. I am informed by my solicitor that the Orders of the High Court dated 3rd February 2009 specifically stated that the Orders be served personally to Mr K. Hence arrangements were made by Legal Aid Commission, Lautoka to effect service on him.
6. I am further informed by my solicitor that in the afternoon of 4th February Mr Taucilagi who is employed by the Legal Aid Commission attempted to serve Mr K who refused to accept service ... [and] a copy of the Affidavit of Service filed in Court ... states the circumstances surrounding the refusal by Mr K to accept personal service of the Court Orders.
7. IN accordance with the Affidavit of Mr K sworn on 2nd February 2009 which was handed to Court by Counsel of the Plaintiff on 3rd February 2009 it is deposed that Mr K is booked to leave Fiji on the 12th February 2009.
8. ALSO in the same Affidavit Mr K deposed that he does not wish to handover the child’s passport or sign an application for a new one.
9. I have today 5th February 2009 instituted contempt proceedings against Mr K for his failure to comply with the Court Orders in refusing to accept service ...
10. I am worried that Mr K who is a USA citizen may leave Fiji Islands with the child’s passport, hence, I will not be able to apply for another one since the US Embassy would want to sight the evidence of my child’s citizenship. The Passport is the primary proof of my child’s identification.
11. THE Plaintiff is unhelpful and uncooperative which is very obvious from his Affidavit sworn on 2nd February and his refusal to accept personal service of court documents.
12. SINCE the Plaintiff is a foreigner, he should be ordered to pay a deposit for security of costs in case costs are awarded against him.
13. THE COURT has assigned Wednesday 11th February for hearing of the substantive matter filed by the Plaintiff which should be vacated until such time as he fully complies with the Orders of the Court dated 3rd February since it is in the interest of the child that she does not become Stateless when her passport expires on 10th February.
14. I SEEK orders in terms of my Application Form 12 filed herein.
7.6 Mr K’s Affidavit of 2 February 2009, referred to in Ms R’s Affidavit and relating to the application by the Child’s Representative (the Attorney-General) in respect of the letter (accepted by the Court as an application) requesting G K’s passport for renewal, said, insofar as the passport was in issue:
7.7 The letter from the Legal Aid Commission to Mr K’s lawyers, also referred to in and exhibited to Ms R’s Affidavit, notes that a copy of the sealed Orders has been received and it is understood Counsel for Mr K was given a copy upon appearing in Court on 3 February 2009. A copy is provided with the letter. Then:
From the Orders, it is quite obvious that your client Mr K must attend to certain obligations. We are also forwarding herewith a copy of the instruction sheet in respect of application for a US Passport.
The reason for doing this is to enable your client to be fully aware of the special requirements of the US Department of State and for him to attend to the needful.
We shall be grateful if you could contact your client and ask him to avail himself in our office with the child’s passport and attend to all the matters that are required of him.
Your urgent attention in the matter is highly appreciated.
7.8 A note at the bottom of the letter, being a part of the letter, states it has ‘been hand delivered to Messrs Qoro Legal as Agent for Messrs Vuataki Law.
8. Authorities on Contempt & Attachment – General
Authorities on contempt and attachment are many As was said in Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 46; ABU0011&Abu0011A.2004L (22 April 2005):
As is well understood, the standard of proof in civil contempt is proof beyond reasonable doubt (Re Bramblevale Ltd [1970] 1 Ch 129). Furthermore, the prescribed procedural steps antecedent to the exercise of the jurisdiction must be scrupulously observed and strict compliance insisted upon (Gordon v. Gordon [1946] P 99)
8.1 Citing Izuora v. The Queen [1953] AC 329 and Parashuram Dettaram Shamdasani v. King Emperor [1945] AC 264, the Court of Appeal in Shah v Rice [1999] FJCA 57; AAU0007u.97s (12 November 1999) said contempt proceedings ‘.. should be used sparingly and only in serious cases’: at 2, per Tikkeram, P., Casey and Barker, JJA The Court endorsed what was said in the King Emperor case, as to ‘the need for wisdom and restraint in exercising the contempt power’, at 270. These cases referred to the use of the power as to contempt in the face of the court. Employing contempt for disobeying the court’s authority vis-à-vis orders (and undertakings) is also acknowledged as serious: Natural Waters of Viti Ltd – going as it does to the liberty of the subject: Gagnon v. Macdonald (1984) LTR 631 (14 November 1984)
8.2 Because the matter is serious in going to the authority of the Courts in making orders,[2] and because there are some differences of view within jurisdictions and the courts generally, it is as well to set out the basic principles.[3]
8.3 (a) General – Contempt and Aiding & Abetting Contempt: Basic principles appear in Kumar v. Ram [2001] FJHC 70; Hbm0026j.200s (19 September 2001)(see also Kumar v. Ram [2001] FJHC 30; HBM0026d.200s (30 May 2001); Kumar v. Ram [2001] FJHC 94; Hbm0026x.200s (28 September 2001)) wherein Her Ladyship Justice Shameem said:
Order 52 Rule 2 of the High Court Rules ... applies to contempt of court committed in connection with any proceeding in the High Court or any proceedings in an inferior court. Order 52 Rule 5 provides that the hearing, after leave has been granted, should normally be held in open court. The burden of proving that the Respondent/s have committed contempt of court is on the Applicant and the standard is one of proof beyond reasonable doubt. [For] disobedience to a court order, the Respondent must be shown to have wilfully disobeyed the order. An unintentional act of disobedience is not enough (Steiner Products Ltd v. Willy Steiner Ltd (1966) 1 WLR 986.)
What does ‘wilful’ mean in relation to criminal conduct? It means, according to the House of Lords in R. v. Sheppard (1981) AC 394, either deliberately doing an act knowing that there is some risk of the consequences, or doing an act not caring about the risks involved. In the context of a positive act (Sheppard was a case of Wilful Neglect of a Child), ‘wilful’ is usually taken to mean ‘deliberate’ or ‘intentional’: at 3-4
8.4 There, a writ of possession and order from Nausori Magistrates Court for execution were received by the Sheriff’s Officer who averred his task as being to visit the Respondents, Ms Nisha and Mr Ram, to explain the writ to them and ‘inform [Ms Nisha] to vacate the premises’. He met with Ms Nisha, explaining his visit to her, speaking in Hindi and showing her a copy of the writ. She requested of him how the writ was prepared ‘when she had been told by the Nausori Magistrates Court the day before that the judgment was not ready’. The Sheriff’s Officer told her ‘there was a court order for her to vacate the house immediately’, she replying she ‘would not move out as there was nowhere for her to go: ‘Shall I sit on the road?’ Next, Mr Ram appeared, the Sheriff’s Officer then explaining the writ and Order to him, whilst Ms Nisha went inside, changed her clothing and departed saying she ‘was going to see her lawyer’. Mr Ram advised the Sheriff’s Officer she had gone and ‘he would not let her in’. The Sheriff’s Officer’s evidence was that he ‘had executed the writ of possession because Ms Nisha had left the property and Mr Ram had assured him that he would not allow her to return’: at 4
8.5 Ms Nisha’s evidence was that a court Order was issued against her and it was ‘never explained to her’. She acknowledged the Court Bailiff’s coming to her house to tell her of the Order for her to move out, saying her lawyer told her not to, ‘because he had applied for stay ...’
She said she realised she had to vacate the house after the judgment was read out in court by the Magistrate [and] when the bailiff visited her a third time, she moved into the back ... of the house and told [him] she was doing so. She said ... she was obeying the court order, because that part of the house belonged to the mataqali. She said ... she continues to live there and honestly believes ... she is complying with the court order: at 7
8.6 Counsels’ submissions were, for Mr Kumar, the Applicant:
8.7 For Ms Nisha and Mr Ram:
8.8 As to the Order, the Court agreed it was inaccurate, describing the land as ‘Nariokoko’ at Certificate of Title Vol. X1/05 folio 2000 when it was ‘Nonokoko’ at Vol. XI/05 folio 200:
However there was no doubt at all in the minds of both [Ms Nisha and Mr Ram] of the land to which the order referred. This was clear from their evidence. The order was made after protracted civil proceedings [with] no dispute about the description of the land. There was no other property ... the subject of the section 169 proceedings. In the circumstances ... the order, while technically inaccurate, was not null and void because of the misdescription. Nor did it render the contempt proceedings a nullity.
I am also satisfied beyond reasonable doubt, on the evidence of [the Sheriff’s Officer], that the writ of possession and the order were properly issued and executed. On the 20th of August 2000, both [Ms Nisha and Mr Ram] knew that the court had ordered [Ms Nisha] to move out of the house. I am satisfied that both ... understood the contents of the order: at 8, per Shameem, J.
8.9 As to the contempt, Her Ladyship said that she was satisfied beyond reasonable doubt that Ms Nisha had ‘remained on the property in question, in wilful disobedience of the court order, since 20th July 2000, when the writ of possession was duly executed. She is clearly in contempt of court’. As to aiding and abetting, however:
I am not impressed with the submission that because [Mr Ram] is in a relationship with [Ms Nisha] he therefore has control over her and her actions. As he rightly said in evidence, she is an adult and must take responsibility for her own actions. She cannot be assumed to be obedient to her partner, and a mere act of tolerance and passive acceptance of her presence in the house would not be sufficient to prove a wilful act of aiding and abetting. The [English] House of Lords in Maxwell v. Attorney-General for Northern Ireland (1969) 68 CrAppR 128 said that an aider and abettor must know or contemplate the crime committed by the principal, and must intentionally lend his assistance in order that such crime will be committed. Lord Scarman said at page 152:
The guilt of an accessory springs from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance [so] that such a crime will be committed. The relevant crime must be within the contemplation of the accomplice, and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a complete blank cheque.
There must ... be evidence of positive acts of assistance, acquiescence is not enough: at 9
8.10 The Court went on to find both Ms Nisha and Mr Ram ‘guilty as charged’, for Mr Ram ‘certainly suggested’ to the Sheriff’s Officer that he ‘was in a position to prevent [Ms Nisha] from re-entering the house’:
Furthermore, he was responsible, according to his own evidence, for organising the survey of the property which purported to allow [Ms Nisha] to stay in the house on the ground that she was ‘on the mataqali side of the house’. Finally, he is clearly, from the tenor of his evidence, still living with her in the house, renting out the house to tenants, with her, and is evidently wilfully assisting her to disobey the court order with full knowledge of the consequences of their conduct: at 10, per Shameem, J.
8.11 Shameem, J. was ‘satisfied beyond reasonable doubt that [Mr Ram] knowingly and wilfully is assisting [Ms Nisha] to disobey the Court Order of 17th April 2000, and is therefore guilty of aiding and abetting her contempt of court’: at 10
8.12 (b) General – Nature of Order, Service ‘Within Time’, Penal Endorsement & Remedy Against Company/Company Director: Four features of contempt and attachment are illustrated in Iberian Trust, Limited v. Founders Trust and Investment Company, Limited [1932] 2 KB 87:
8.13 Rules of the Supreme Court (UK), Order XLI, r. 5:
Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be endorsed a memorandum in the words or to the effect following, viz.: -
If you, the within named [AB], neglect to obey this judgment [or order] by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same judgment [or order].
8.14 The Order stated:
It is this day hereby adjudged and declared that the plaintiffs are entitled to the return by the defendants of the following shares, viz., 258,000 deferred shares and 11,180 preferred shares in Radium Springs, Ld., within 14 days from the date hereof. And it is further adjudged that the plaintiffs do have a return of the said shares within 14 days from the date hereof: Dated 7 July 1931
8.15 It was served on a director, AE Holt, on 19 August 1931 at registered offices of Founders Trust, copy served on director JWW Shuttleworth on 7 November 1931. Neither copy carried an endorsement of a memorandum of consequences of disobedience as required by Order XLI, r. 5. Founders Trust did not transfer the shares. Mr Shuttleworth said he could not comply, because the shares were not in his possession nor under his control. Mr Holt said all the shares had been handed over to him and his son as security against their loans to Founders Trust by resolution on 19 February 1931. The share certificates were in his custody, remaining with him, however no transfer or document of charge had ever been prepared.
8.16 Iberian Trust, Ld asked for leave to issue writs of attachment against the two directors. The application was ruled as misconceived, and was dismissed:
... to constitute a contempt of Court for which the directors may be punished there must be wilful disobedience ... by the company or its servants or directors to do something ... it has been ordered to do ... [By] Rowlatt J.’s order, what is it ... the defendant company have been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything – it says: ‘that the plaintiffs do have a return of the said shares within fourteen days.’ Am I to spell out of that an order on the defendant company to do something? I think not. If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done: at 95, per Luxmoore, J.
8.17 Citing Attorney-General v. Walthamstow Urban Council 11 TLR 533, the Court said the determination there (by Chitty J.) that it was ‘the duty of the defendants to find out the proper means of obeying the order’ was not contradicted. Such duty lies on the Defendant ‘where the order either prohibits or orders the doing of a specific act’.
8.18 In the Walthamstow Urban Council case the Order restrained the Defendant Council from discharging sewage into a brook, creating a nuisance:
That was definite enough in its terms. The defendant council were ... unable to prevent discharge of sewage into the brook so long as the existing system of drainage or sewage disposal was used by them. The defendant council admitted ... they were trying to find a solution ... whilst still retaining the existing system. Here, the order does not even provide that the defendant company shall return the shares. What it says is ‘that the plaintiffs do have a return of the said shares within fourteen days’: at 95, per Luxmoore, J.
8.19 Even then, that would not be ‘sufficiently definite to be enforced by penal proceedings’:
But the actual order is far more ambiguous than that; the order is no more an order to do an act than an order that the plaintiff is to recover something from the defendant is an order upon the defendant to do an act ... [A]n order to recover money is not an order on the defendants to do anything, and therefore ... could not be enforced either by a supplementary order for the payment of the money within a fixed time, or by attachment: In re Oddy. Major v. Harness [1905] UKLawRpCh 147; [1906] 1 Ch 93: at 95-96, per Luxmoore, J.
8.20 Before the Order could be enforced against the Defendant company or directors, said the Court, the Plaintiff company must obtain a supplementary order requiring the Defendant company, its directors and secretary, ‘within a limited time, to execute a proper transfer of the shares to the plaintiff company. The supplementary order should provide that the transfer should be settled by the judge in case the parties differ’: at 96, per Luxmoore, J.
8.21 Even assuming unambiguous wording, the Order would not found contempt, not being served until expiry of the time of what was required to be done. That ‘would be a complete answer to the application for attachment in this case’: at 96 Further – a question ‘of some importance’ was that the order when served had no endorsement or ‘penal clause’:
The object of the indorsement is plain – ... to call to the attention of the person ordered to do the act that the result of disobedience will be to subject him to penal consequences. [Here] it is admitted ... no steps can be taken to sequestrate the property of the company, because the order served on it was not indorsed as required by Order XLI, r. 5. It is admitted that service on the defendant company is necessary [before] enforcement of the order by sequestration. It is argued, however, that Order XLI, r. 5, does not apply to a director of a defendant company who is himself not a defendant to the action: at 97
8.22 The Supreme Court Orders did not ‘in fact, require service of a copy of the judgment or order on a person who is not required by the order to do a particular act’. However, in practice Courts ‘have always required that the order to be enforced should be personally served on the director before it would be enforced against him by attachment’: at 97 Authority for the proposition lay in McKeown v. Joint Stock Institute, Ld [1899] UKLawRpCh 49; [1899] 1 Ch 671, and said the Court:
.... The order so served should, as a preliminary to its enforcement against the directors, be indorsed with notice to the effect of the memorandum prescribed by Order XLI, r. 5, including in it the name of the particular director served: at 98
8.23 Further, the remedy against the directors, being alternative to the remedy against the Defendant company, could not apply unless the Plaintiffs were able ‘to pursue the original remedy against the defendant company’. On this ground, too, the Plaintiff company was ‘not in a position to ask for leave to issue writs of attachment’ against directors Holt and Shuttleworth. There were, further, grounds for saying there was no ‘wilfulness’ shown – as required for contempt – in the actions of the company or directors.
9. General Authorities on Specific Aspects of Contempt
For a detailed recitation of the various requirements for contempt, including onus and criminal standard of proof, knowledge, mens rea and meaning of ‘wilful disobedience’ and ‘contumacious disregard’, particularisation and requirements of procedural papers to be filed, see Ali v. Chaudhary [2004] FJHC 189; HBC0061J.2001L (29 March 2004), at 4-5, per Gates, J. The general authorities confirm the following requirements for contempt and attachment:
9.1 (a) Particularity, Accuracy, Clarity & Certainty of Orders: In Kumar v. Ram [2001] FJHC 70; Hbm0026j.200s (19 September 2001), it was clear to the Court from the Respondent’s evidence which land was in question despite its being incorrectly described in the Orders – the difference being in the name ‘Nariokoko’ vs ‘Nonokoko’ and Certificate of Title Vol. X1/05 folio 2000 rather than Certificate of Title Vol. X1/05 folio 200 – and ‘there was no doubt at all’ in their minds of the land in the Order, contempt could be found proven.
9.2 The authorities emphasise particularity, accuracy, clarity and certainty of Orders.
A. Chand v. Chandar [2003] FJCA 10; ABU0021U.2002S (28 February 2003)
Two appeals against dismissal of proceedings by originating summons per section 169 of the Land Transfer Act (Cap 13). Respondents were tenants of various parcels of land situate within a larger parcel comprising in total 149 acres. The Order sought in each case was:
That the Defendant give up immediate vacant possession to the Plaintiffs of the premises located at Ravodrau, Nakaulevu, Navua and comprised and described in Certificate of Title No. 5079 of which the Plaintiffs are the registered proprietors and which the Defendant now occupies: at 2
Various discrepancies existed in descriptions of the land. One was that it constituted a total area (undivided) of 259 acres 1 rood 11 perches. The Certificate of Title specified 149 acres. ‘The discrepancy is not explained’: at 3 The Court said it would ‘not make orders that ought not to be made’:
It has to be remembered that the order may have to be enforced by execution and anyone executing a writ of execution must know precisely what it is that he or she is to do. No court officer entrusted with execution of the order sought by the appellants in this case could possibly have nay certainty as to what was required: at 8, per Reddy, P., Kapi and Sheppard, JA (Emphasis added)
B. PA Thomas & Co & Ors v. Mould & Ors [1968] 2 QB 913
Contempt was sought for breach of injunction granted on 6 October 1967, contempt alleged between then and 23 October 1867. A memorandum sent to the Plaintiffs (DA Thomas)’ competitors ‘betrayed confidential information the subject of the injunction’. Counsel said the Defendants, Mould & Ors, in Court when the injunction issued, were precluded from saying they did not know its terms. The injunction said Mould & Ors were restrained from:
... disclosing divulging or making use of any confidential information acquired by them during the course of their employment by [DA Thomas] or from any person who acquired such information in the course of his employment by [DA Thomas] relating to (a) schemes providing for the sale of income; (b) schemes providing for splitting an endowment; (c) schemes concerned with death in service ...’: at 919
For Mould & Ors - DA Thomas must prove a breach, first establishing ‘what it is alleged was confidential’ and secondly showing ‘at least prima facie that it was indeed – in fact – confidential’. Ultimately, the injunction’s terms were insufficiently precise to cover the alleged breach. In Affidavits relied on for the injunction, DA Thomas did not set out the terms of the schemes for which they claimed confidentiality: they deliberately framed their Affidavits to conceal the schemes’ precise nature. The memorandum circulated by Mould & Ors – seeking confirmation from other firms that DA Thomas’ schemes were not unique, following a professional pattern – disclosed details not in the Affidavits and hence not incorporated into the injunction. The Court said that, the injunction having been granted in terms DA Thomas requested, and if they did not ‘wish to trust the court and its procedure for protecting their legitimate interests’ rather ‘disguising the true nature of their "know-how"’ as they did, DA Thomas could not complain ‘if at a later stage they are met with the answer with which they have been met here...: "You are alleging a breach of the injunction: you have done thus and so, thus and so, and thus and so" and then invite the court to draw the inference that because it is different from that which was set out in statements sworn to by the plaintiffs it must be confidential material – part of the "know-how"’, part of the material the injunction is said to protect: at 923, per Connor, J.
DA Thomas could have been ‘more open’ in terms of the injunction sought, the application’s being heard in chambers, so not publicised, and any subsequent trial could, if DA Thomas ‘so wish[ed], be heard in camera under the rules of court’:
... where plaintiffs have ... a detailed scheme of this class which is their brain-child and which is complicated and ... gives them a lead in the market, until other people think out a similar or better one, they can be protected adequately by the courts ... But if the plaintiffs, seeking to protect their ‘know-how’, are anxious to enforce any injunction ... by seeking the [Court’s] help ... to punish a breach of it, it [is] essential that they should make it absolutely clear what it is they are seeking to protect. It is all very well to say ‘This is confidential material.’ It may well be. But ... this is a typical example of a case such as those of the situation referred to by Plowman J. in Suhner & Co AG v. Transradio Ltd [[1967] RPC 329] and in Technograph Printed Circuits Ltd v. Chalwayn Ltd [[1967] RPC 339] where the judge [pointed out] that in considering whether interlocutory relief by way of injunction should be granted one of the considerations is what is to happen if there is a breach, and committal proceedings or punitive proceedings are sought on behalf of the plaintiff: at 922, per Connor, J.
Where parties seek to invoke the Court’s power to commit to prison and ‘deprive people of their liberty’, there must be ‘quite clear certainty about it’. With ‘no such certainty’, the Court was ‘not prepared to give [the] relief’ to DA Thomas: at 923, per Connor, J.
C. Chiltern District Council v. Keane [1985] 1 WLR 619
Mr Keane, gave an undertaking on 24 March 1980 not to use or permit land to be used for storage unconnected with agriculture use, in contravention of an enforcement notice of 13 December 1976 served by the local authority (Chiltern District Council). On 18 December 1980 the Court ordered him to remove specified vehicles. On 12 September 1984 Chiltern District Council applied by notice of motion for an Order that Mr Keane be committed to prison for contempt for breaking the undertaking, and failure to comply with the Order of 18 December 1980. A letter of 9 November 1984, addressed to him, advised the hearing to be on 1 February 1985. On 29 January 1985 Mr Keane wrote to the Court stating uncertainty as to the new date. On 1 February 1985 the Court held there was a strong probability Mr Keane ‘knew perfectly well’ the date of the hearing and in his absence ordered he be committed to prison for two months. The Order was drawn up in common form, stating the Court’s satisfaction of Mr Keane’s being guilty of contempt in not complying with the 1980 undertaking and 1984 Order. Terms of undertaking and Order were set out in schedules to the Order. Mr Keane’s appeal was allowed:
Judges, ‘having heard the evidence, frequently say, "I find the contempt proved", without specifying heads of contempt’ where there are more than one found proven. The judge may then proceed to consider the appropriate penalty, however, ‘the contemnor is entitled to know on how many counts he has been found guilty and to have them specified’. The Court said judges should ‘indicate in clear terms, when giving the reasons for their judgments, what it is that they find proved’. Further, those responsible for drawing up the orders should ‘record what it was that was found proved’. On that basis also Mr Keane’s case was made out: at 623-24, per Sir John Donaldson, MR, Parker and Browne-Wilkinson, LJJ concurring.
D. Harmsworth v. Harmsworth [1987] 3 All ER 816
In the first instance, the Court said a notice to Mr Harmsworth to show cause why he should not be committed to prison for beaches of a non-molestation Order could be read together with Ms Harmsworth’s Affidavit detailing his continuing molestation including a serious assault. On appeal, it was held this did not follow. Rather, the test was ‘does the Notice give the person alleged to be in contempt enough information to enable him to meet the charges’ (adopting Chiltern District Council v. Keane): at 821 If a case required ‘lengthy particulars’, these might be set out in a schedule ‘or other addendum’ attached to the Notice rather than in the body of the Notice itself. However, ‘reference in the notice to a wholly separate document for particulars that ought to be in the notice [is] quite a different matter’. Such reference (as here, to the Affidavit) ‘could not overcome a deficiency’ in the Notice: at 821, per Nicholls, LJ
However, ‘what is not required ... is that the notice of the motion should be drafted as though it was an indictment in criminal proceedings’. A Respondent must be given particulars of what is alleged to be the breach; but ‘particulars do not need to be set out in the same way as separate counts ... in an indictment, nor do they need to give the particulars ... normally expect[ed] ...in a count in an indictment’: at 823, per Woolf, LJ The ‘proper approach’ was in Linnett v. Coles [1986] 1 All ER 652:
Anyone accused of contempt of court is on trial for that misdemeanour and is entitled to a fair trial. If he does not get a fair trial because of the way the judge has behaved or because of material irregularities in the proceedings themselves, ... there [is] a mistrial, which is no trial at all. In such cases, ... an unlawful sentence cannot stand and must be quashed. It will depend on the facts of each case whether justice requires a new one to be substituted. If there has been no unfairness or no material irregularity in the proceedings and nothing more than an irregularity in drawing up the committal order ..., I ... see no reason why the irregularity should not be put right and the sentence varied, if necessary, so as to make it a just one: at 562, per Lawton, LJ
Here, the Notice setting out some of the matters with sufficient particularity, the appeal was partially allowed only. However, as the Court below had taken into account the serious assault although not particularised in the Notice nor stated in the Affidavit, one month’s imprisonment was reduced to 14 days, suspended for six months.
E. Redland Bricks Ltd v. Morris & Anor [1970] 652
A mandatory injunction required Redland Bricks Ltd (Redland) to take action to prevent slippage of the neighbouring market garden into a pit created by Redland’s excavation. It was ‘emphasised that a mandatory order is a penal order to be made only with great caution, especially ... where as here, the defendants have not been in any way contumacious or dilatory’: at 658 The English House of Lords said it ‘has been well settled for a long time’ as in Kennard v. Cory Bros & Co Ltd [1922] 1 Ch 265:
If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions: at 274, per Sargant J.; affirmed in the English Court of Appeal [1922] 2 Ch 1.
F. McIlraith v. Grady [1968] 1 QB 467
At first instance, contempt lay in not complying with an injunction against obstructing a right of way. The English Court of Appeal held the committal order deficient:
... this court must insist on the ‘particular matter of contempt’ being set out. As the matter stands we do not know what is the particular wrong ... Mr Grady has committed and for which he is to be punished. We do not know whether it was because the van stood [ion the right of way] for a day or two, or because of the cycle or the dustbin or the jamming of the gates. It may be for one, or some, or all of those things. This court should know what it is. Mr Grady himself should know so that he can, if he wishes to, submit that the punishment is excessive: at 477, per Denning, MR
Rex v. Lambeth County Court Judge & Jonas (1887) 36 WR 475; 4 TLR 138, DC was adverted to, a committal order ‘merely recit[ing] the terms of the original order and ... not specify[ing] any particular breach’. It was ‘as bad as bad could be’:
... this objection to the committal order is a good and valid one – namely, that this order does not clearly and distinctly specify in what respect or respects the disobedience to the original order has been incurred: at 476, per Wills, J.
G. Attorney-General v. Staffordshire County Council [1904] UKLawRpCh 176; [1905] Ch 336
Plaintiffs sought a declaration that the Staffordshire County Council were liable to repair and maintain embankments and walls and be ‘ordered forthwith’ to repair ‘all such as in need’ of it. Holding that no such mandatory order could be made, the Court said further:
... it is the necessary requisite of every injunction and every mandatory order that it should be certain and definite in its terms and it must or ought to be quite clear what the person against whom the injunction or order is made is required to do or to refrain from doing: at 342, per Joyce, J.
9.3 (b) Personal Service: In contempt applications, most judgments are prescriptive in requiring personal service, although not so for attachment. The requirement is not, however, entirely inflexible: Carlton Brewery (Fiji) Ltd v. Bubble UP Investments Ltd [1998] FJHC 68; Hbc0228x.96s (22 May 1998) – Order for substituted service where ‘efforts [at service] thwarted by ... access being barred and the vigilance of the Security Personnel [in] warn[ing] the Respondents wherever they are to avoid service ...’: at 5; see also Carlton Brewery (Fiji) Ltd v. Orange Bubble-Up Company [1991] FJHC 38; Hbc0150j.89s (27 May 1991) Nor is the question of personal service without dispute. Nonetheless, dispensing with personal service requires proof of particular circumstances. Cases refer to personal service of the Order said to be breached; and personal service of the contempt application.
H. Mander v. Falcke [1891] UKLawRpCh 129; [1891] 3 Ch 488
Mander v. Falcke foundered on short-service, however, the Court also addressed personal service. Plaintiffs sought committal of the Defendant, George Edward Hinde, to Holloway Prison for alleged breaches of an Order of 8 May 1891, and an Order of the English Court of Appeal of 3 June 1891 affirming the earlier order: [1891] UKLawRpCh 100; [1891] 2 Ch 554 The present Notice of Motion was dated 6 July 1891, for 10 July 1891. A preliminary objection was taken for Mr Hinde that no Order could be made, for he had not been served personally with the Notice of Motion or, if there was personal service, it was irregular as there were not ‘two clear days’ between service and the date for hearing as required by the Supreme Court Rules 1883.
The Court observed that originally different rules of service applied to attachment and committal, however this no longer appeared so, or generally not: see In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972 As to committal:
The rule in Lord Eldon’s time was that there must be personal service of a notice of motion to commit. It is not laid down anywhere that you cannot have an order for committal without personal service of the notice of motion; but the Court will not allow the order to go until it is satisfied that every endeavour has been made to effect personal service. I do not find any rule so laid down in terms in the General Orders; but that was certainly the rule of practice ..., and it ... was a rule of the old Court of Chancery. [An endeavour] to obtain an order for committal ... without personal service [could be] refused ... on that very ground. ... Then [latterly] there crept in, it was said, a difference of practice; but that was challenged ... in Nelson v. Warssam ... [R]eference was made to Ellerton v. Thirsk [1820] EngR 380; [1 Jac&W 376], ... the main authority for the necessity of personal service of a notice of motion to commit; and upon counsel asking whether this was consistent with the modern practice, the learned Judge asked ‘When has it been altered?’ ... no answer was given ... But counsel went on to argue that the object of requiring personal service was to satisfy the Court that the defendant was informed of the proceedings against him, and that the defendant, if he appeared, could not object that he had not been personally served: at 492-93, per Kekewich, J. (Emphasis added)
There was, said the Court, no basis for altering the practice of a Defendant’s being served personally, particularly by a judge at first instance. As –
the Notice of Motion was dismissed, but with no order for costs. Justice Kekewich noted that in another case he heard, an Order for commitment was made and upheld by the English Court of Appeal, ‘notwithstanding the absence of personal service’. Hence, although it was ‘not quite clear as to what ought to be done’ in the present case, ‘when the application comes before me ... to dispense with personal service, I will consider it’: Because the application would be ex parte, the Court would not have the advantage of hearing from Counsel for the Defendant, and would:
... not prejudge such an application one way or the other, except so far as to say that it would be impossible and inconceivable, and contrary to common sense and justice, that a man who has rendered himself liable to committal should ultimately be able to evade it by keeping out of the way ...: t 493, per Kekewich, J. (Emphasis added)
I. In re Evans; Evans v. Noton [1893] 1 Ch 259[5]
In an administration action, the Defendant, Mr Noton, having been imprisoned (under an order for attachment) for non-appearance, sought setting aside of the Order, its not having been served on him personally, albeit filed under Order LXVII, r. 4, Supreme Court Rules 1883. The case was first heard by Justice Kekewich, then went on appeal.
Kekewich, J. said Mr Noton’s being ordered to attend as witness rather than Defendant made ‘not the slightest difference’. Further ‘possibly’ it ‘may have been wrong’ that service of the Order was not personal, effected by filing the Notice of Motion in the central office. Mr Noton did not appear on the motion, and ‘it may have been because he was not aware ... the motion was coming on, though there was the fact that he had deliberately disobeyed the order for his examination’. There was ‘much to be said in favour of the view’ that the Order was irregular without personal service of the Notice of Motion. However, ‘no authority ... was cited on behalf of [Mr Evans] which appeared to be in point’. An Order once made not being void, but able to be set aside or otherwise dealt with at the Court’s discretion ‘if the Court is satisfied, not only that the order ought not to have been made according to the strict practice, or that practically the man ought not to have been in prison at all or that he should be released, then the Court will exercise discretion in his favour’: at 255-56, per Kekewich, J.
Petty v. Daniel [1886] UKLawRpCh 219; 34 ChD 172 was relied on, being an application to discharge Mr Petty, imprisoned for contempt ‘on the ground that the evidence used in support of the motion for attachment was never properly served’. There, Justice Kay concluded it ‘was competent to the Court to condone an irregularity of that kind’, not setting the Order aside but exercising discretion in ordering Mr Petty’s release:
[I]n short he held that the order for attachment was not void, ‘but there has been an irregularity in obtaining it, and therefore under Order LXX, r. 1, the Court may set it aside, or amend, otherwise deal with it in such manner and upon such terms as the Court shall think fit’: cited at 256
In agreement, Justice Kekewich held the order against Mr Noton was not void, and considered how discretion should be exercised:
Accordingly, the ‘only alternative was to send him to prison: no other course could have any effect upon him, and he comes precisely within the words of Mr Justice Kay: "Much has been said to me about the liberty of the subject, but I have not much respect for the liberty of a subject who deserves to be in prison." [Mr Noton] deserves to be in prison, and I leave him there. I refuse the motion, with costs’: at 256-57, per Kekewich, J.
On appeal, it was submitted that cases where service was held sufficient although not personal involved attachment, not committal, and in committal ‘it is necessary to serve the party personally: Mander v. Falcke [1891] UKLawRpCh 129; [1891] 3 Ch 488 Bowen, LJ asked if a person kept out of the way to avoid service, ‘is not that a case where the Court would authorize another form of service; and if service had been effected in some other way without leave, would it not be within the power of the Court to ratify it?’: at 258
Further, it is ‘not like a case where a man finds himself in prison without knowing why’. If personally served with an Order ordering him to do a definite act, a person disobeys it ‘and sets the Court at defiance, justice does not require ... he should have had personal service of the notice for leave to issue attachment’: at 263-64 In response: ‘Illness would be an excuse for non-compliance with any order’ and, hence, because that possibility existed, it was ‘essential to justice’ that before a person is committed to prison, s/he should have notice, that s/he ‘may have an opportunity of explaining why’ the order has not been obeyed by attending before the examiner: at 265
The English Court of Appeal said that despite the ‘ingenious’ submissions, they were not persuaded Kekewich, J.’s decision should be reversed:
No notice of motion for [the] order [of attachment was] served on [Mr Noton] personally; but the notice was ... given in the manner provided in cases other than cases in which personal service is required under the Rules]. Is this a case in which personal service was required? : at 264-65, per Lindley, LJ
Court of Chancery practice was considered vis-à-vis failure to obey a definite order to do an act, where attachment issued as a matter of course, that practice being altered so attachment could not be issued without the Court or a Judge’s leave, leave to be obtained only on notice to the party:
If the matter were clear of precedent, there would be much to be said in favour of the view that the service must be personal; for it seems a strong thing to put a man in prison without his having notice of the application. But, according to the General Orders, the practice is settled. Whether the rules ought to be altered, it is not for us to say: at 265, per Lindley, LJ
Bowen and AL Smith, LJJ agreed that the distinction between attachment and committal meant personal service was not in the circumstances, necessary. The appeal failed.
J. McKeown v. Joint Stock Institute, Limited [1899] 1 Ch 571
Where an Order was made against a corporation, it was held no attachment should issue against a director to ‘send him to prison’ for the corporation’s failure to obey the Order, ‘until he has been personally served with the order which has been disobeyed’. The motion was stood over for Mr Bottomley, the director, to be served personally, with leave to amend accordingly:
The parties have for a long time successfully evaded giving the required information. My patience is at last exhausted; and, when the proper service has been effected, I shall deal with the matter finally, if the required information has not then been given: at 673, per North, J.
K. Haydon v. Haydon [1911] UKLawRpKQB 50; [1911] 2 KB 191
The Debtors Act 1869 (UK) was invoked in an application for committal to prison for default in payment of a debt: s. 5 In December 1907 Ms Haydon, the Plaintiff, obtained a decree of judicial separation, and in April 1908 an Order for payment of permanent alimony by instalments of £S 5 0s 0d per week . Mr Haydon, the Defendant, paid no instalments. In January 1911, with £S 790 0s 0d ‘due and payable’ Ms Haydon issued a judgment summons for Mr Haydon to appear in person on 21 January to be examined as to means to pay. The summons was served upon Mr Haydon personally. Mr Haydon was present at the hearing and ordered to pay £S 20 0s 0d, part of the due amount, on or before 28 January, with the summons adjourned to February on balance of the debt. Service of the Order was accepted by Mr Haydon’s solicitor, without Mr Haydon’s being served personally. His not having paid the sum by the due date, a summons was served personally upon Mr Haydon seeking, amongst other matters, that he show cause why he ought not be committed to prison for default. An Order for committal was made in his presence, to be effected if he did not pay before a date in March; when he failed to pay, service of the Order was accepted by his solicitor.
Mr Haydon appealed against the Order for committal, the main ground being that it was made without jurisdiction because the original Order of 21 January 1911 had not been served personally upon him. Unanimously the Court dismissed the appeal:
... A judgment summons itself must ... be served upon the judgment debtor [as] required [under] the County Court Rules; but I can find no rule, and counsel has not been able to refer me to one, which requires personal service of the order to pay upon which the proceedings for committal are founded; it is the summons, and not the order to pay, which must be urged personally. And there is sound reason for this: the summons tells the judgment debtor exactly what may be done in the matter and what order may be made against him, and there is obviously in the case of such a document the best reason for insisting upon personal service. I can, however, see no reason for requiring personal service of the order to pay, and, a fortiori, there can be no such reason where the judgment debtor was actually present when the order to pay was made and was fully cognizant of its nature. I am not disposed to extend the rights of a judgment debtor who has had the means to pay but has not paid: at 194, per Vaughan Williams, LJ, Farwell and Kennedy LLJ concurring
The Court agreed with observations in Stonor v. Fowle [1906] 1 Ch 682: ‘... in truth this power of committal is not an imprisonment for debt, it is an imprisonment for past dishonesty, together with the prospect of the plaintiff getting his money’: cited at 194.
9.4 (c) Time-limits in Orders to be Unambiguous & Complied with: Particularisation requires time-limits or requirements to be set out clearly and unambiguously in Orders. Hence, where a party was required to file an inventory and accounts, but the Order failed to specify a time after service for compliance, this was fatal to a contempt application. There being ‘no proper foundation for [a] contempt order and fine’ Orders for contempt had to be set aside: Singh v. Kiran [2002] FJCA 80; ABU0018U.2001S (29 November 2002), at 6, per Reddy, P; Smellie and Penlington, JA, citing Hitachi Sales (UK) Ltd v. Mitsui Osk Lines [1986] 2 Lloyds Re 574, applying Van Houten v. Foodsafe Ltd [1980] 124 SJ 277
9.5 If service is not consistent with time-limits or requirements, this renders any contempt or attachment application nugatory.
L. Duffield v. Elwes; In re Chambers [1840] EngR 416; (1840) 2 Beav 268 (11 February 1840)
On 2 May 1839, Mr Chambers (not a party) was ordered to pay Mr Wilton £S 67 10s 4d (constituting certain costs) ‘within three weeks from the date of the order’. The Order was not served. No payment was demanded until 8 June 1839 – some five weeks from the date of the Order. Payment not being made, on 12 June 1839 a four-day Order was obtained, then on 14 November 1839 an Order for Mr Chambers’ commitment. The Court was then moved to discharge the 12 June and 14 November Orders on the ground that the service of the order of 2 May, after expiration of the time limited for payment, was irregular. The Court dealt both with ‘time’ and with a person not a party’s being ordered to pay monies, together with the question of service.
Stating that no authority on the question of ‘time’ could be found, the Court said the 2 May 1839 Order ‘was not regularly served’. Hence, Orders of 12 June and 14 November ‘were irregularly obtained’. The motion was granted:
... [I]t [is] clearly irregular to serve a writ of execution commanding payment of money, after the expiration of the time appointment for payment in the order upon which the writ is founded.
In the process by which a person, not a party ..., is to be compelled to pay money or costs to another there can be no writ of execution, the object is effected by service of orders and by commitment. [W]hen the first order does not appoint a time for payment there must be a second order for payment in a limited time. Upon disobedience to that order, then follows an order that payment may be made in as short a time as four days or that the person may stand committed; and lastly follows an order for commitment. ... I had considered ... in such cases, the second order limiting the time for payment might be dispensed with, but it appears to have been established that [it] is required; and this being so, it is surely necessary that the order limiting the time should be treated as having a definite meaning, and should be so served as to make it possible for the person upon whom it is served to obey it, i.e. within the time limited for payment. Although the motion is made upon notice, the person is not, under ordinary circumstances, judicially deemed to be cognizant of it till it is served upon him and he cannot justly be said to be guilty of contempt or disobedience by non-payment within a limited time, if he does not know of the order till after the expiration of the limited time. The time limited in this order cannot be said to be immaterial; if it were so, and the service and demand of payment might be made at any time after its expiration, then the order, notwithstanding the litigation or time which it expresses, would in substance and effect be an order to operate without limitation of time, and consequently not such as the practice quires; it would not in reality be different from the first direction to pay without the appointment of any particular time, and would therefore be an insufficient foundation for the minatory or four-day order: at 269-70, per Lord Langdale, MR (Emphasis added)
M. In re Tuck; Murch v. Loosemore [1906] UKLawRpCh 53; [1906] 1 Ch 692
The Defendant, Robert Francis Loosemore, was present in Court and represented by Counsel when on 5 December 1905 the Order was made by consent that he should ‘on or before January, 1906, lodge in Court the sum of £S 1123 12s 4d being ‘proceeds of sale of 835l. London and North Western Ry debenture stock’ and ‘deposit certain documents at a bank’. Mr Loosemore initialed the endorsement on one of the briefs. On 1 January 1906, the day payment was ordered to be made, the Order was passed and entered, then served personally on Mr Loosemore on 2 January, ‘with the usual indorsement on it giving notice ... he would be liable to process of execution if he did not comply with it within the time limited’. His not having paid the money into Court, on 10 January Notice of Motion was given him by the Plaintiffs for liberty to issue a writ of attachment for contempt. £S 1123 12s 4d, of which he was trustee, was proven as money in his hands.
In the first instance, it was held that his being present when the Order was made meant personal service was unnecessary, and its being served after the day fixed for payment was immaterial. On 2 February 1906, the writ was directed to issue, but to lie in the office for three weeks. Shortly after its issue, Mr Loosemore was lodged in Exeter Gaol. Two weeks later, £S 1123 12s 4d was paid into Court, with Mr Loosemore obtaining an Order for discharge from custody. He appealed against the 2 February Order, asking that if necessary the 5 December 1905 Order be set aside or varied. The English Court of Appeal considered the contention that the Order’s not being served until after 1 January 1906 ‘was not a good objection, because [Mr Loosemore] was present in Court when the order was made, and therefore personal service was unnecessary’, and the Court below’s citing of Hyde v. Hyde [1888] UKLawRpPro 30; (1888) 13 PD 166, in its being said:
It is true that as a general rule no order will be made for sequestration or attachment unless it can be shewn ... there has been personal service of the order disobeyed, but there are exceptions ... If it were proved, for instance, that the person was actually in Court at the time the order was made, service would be unnecessary in order to obtain process for contempt, and perusal service is also dispensed with if it is shewn that the reason why there has been no personal service is that the person to be served has evaded service: at 171, per Cotton, LJ
On appeal: it was not ‘easy to see why any special virtue should be attached to notice derived from being present in Court, as compared with other notice of a much more full and formal kind’. As to the suggestion that the ‘settled practice of the Court is in favour of the view that the order need not be served "if the Court is satisfied that the person to be served is aware of the order"’ - the Annual Practice said so, however, ‘the authorities cited do not justify it’. The Senior Registrar was consulted as to the practice, which was:
... where an order has been made for a person to do an act within a limited time ... the order is [required to] be personally served for the purpose of founding a motion for an attachment, except in cases of orders for discovery or inspection..., or where an order for substituted service has been made ..., or where, in the opinion of the Court, the service has been evaded; and it has not been the practice to make an exception on the ground that the person ordered to do the act was aware of the order. The service of the order after the time limited has expired for doing the act required is not a good service: at 697
Order for attachment ‘not properly made’; Plaintiffs to pay costs of appeal and below.
9.6 (d) Penal Clause/Endorsement Required – Order vs Undertaking: For an action in contempt, the Order/s must carrying a ‘penal clause’ or ‘endorsement’, such as:
If you the within named Applicant, Plaintiff, Defendant, Respondent and/or Third Party disobey this Order you will be liable too the process of execution for the purpose of compelling you to obey the same.
Take notice that if you fail to carry out the acts required of you by the within decree (or order) within the time specified in the decree (or order) for carrying out those acts, further legal proceedings may be taken against you for the purpose of compelling you to carry out those acts.
If you neglect to obey the order within the time specified herein, or, if the order is to abstain from doing an act, that if you disobey the order, you are liable to process of execution to compel you to obey it: Ord 45, r. 4(a)
If you, the abovenamed body corporate neglect to obey the order within the time so specified or, if the order is to abstain from doing an act, that if you disobey the order, you are liable to process of execution to compel you to obey it: Ord 45, r. 6(4)(b)
9.7 Its absence cannot be excused as a ‘clerical mistake’ or an error arising ‘in the Court’, although a Court will/may refuse to entertain an application for variation of the order until the contempt is purged – that is, until the order is complied with: Postulka v. Postulka [1988] FJHC 7; [1988] 34 FLR 82 (3 May 1988) Service is ‘clearly irregular’ where the order when served on the Respondent does not bear a ‘penal notice’: Shalini v. Basanti [2003] FJHC 63; HPP0036j.1999s (27 August 2003), at 6, per Pathik, J.
9.8 With an undertaking, the same principle (of mandatory penal clause) does not apply:[6]
N. D v A&Co [1900] UKLawRpCh 22; [1900] 1 CH 484
Undertakings were given by solicitors as Defendants. The sole Order was that the motion should stand over until trial without prejudice to any question on costs or otherwise. Part of the undertaking referred to non-disclosure of documents, the next part stating:
... also undertaking on or before the 29th January, 1900, to deposit in the Central Office upon oath any papers or documents handed to them by Major and Mrs D. or either of them, and any other papers or documents in their possession, custody, or power belonging to the estates of Major and Mrs D. or either of them, and also copies of any entries in the books of the defendants (such entries to be made exhibits) and copies of any other documents in the possession, custody, or power of the defendants not deposited as hereinbefore provided relating to the business of Major and Mrs D. or either of them’. Further the Plaintiffs ‘were to be at liberty to inspect and peruse and to take copies of or extracts from any of the documents to be deposited as thereinbefore provided as they might be advised at their expense’.
On 30 January 1900, A&Co deposited certain documents on oath. However, the Affidavit was ‘clearly insufficient’ for the documents ‘were required for the purpose of an examination in London’ on 31 January 1900. On 31 January Major and Mrs D. by special leave moved for liberty to issue a writ of attachment against A&Co ‘for breach of their undertaking contained in the order of January 26’. A&Co complained the application ought not to have been made and took, ‘as they were entitled to take, several objections of a more or less technical nature to the regularity of the proceedings’. Ultimately it was arranged, ‘without prejudice to any question’, that A&Co should within the named time make a further Affidavit. The only question then was of liability for costs of the motion.
A&Co’s objections were:
As to the first objection, this the Court said was ‘not well founded:
It is settled law that an order granting an injunction may be enforced by committal, although the order has not been served. It is sufficient if it be shewn that the defendant had notice of the order. Service of the order is a convenient mode of giving notice, but that is all. Notice may be given by telegram or otherwise: see United Telephone Co v. Dale [1884] UKLawRpCh 13; [25 ChD 778] If this holds good where a hostile order has been made, it must equally hold good where the defendant has voluntarily given an undertaking. Indeed in such a case I think no notice at all is requisite, for, in the words of Chitty J. in Callow v. Young [55 LTR 544], ‘it is not necessary to shew that the person sought to be attached had knowledge of his undertaking. He must be presumed to have known that he had given his undertaking’. Having regard to the settled practice of giving an undertaking in the terms of a notice of motion, it would be highly dangerous to hold that a defendant who had given an undertaking could disregard it unless and until the order was served ...: at 487, per Cozens-Hardy, J. (Emphasis added)
As to the second, it was ‘conceded that if committal is the proper remedy, personal service of the notice of motion is necessary’: at 487, per Cozens-Hardy, J.
On the third, the Court said that according to ‘the old law’ an order of the Court for committal of a Defendant was the proper remedy for beach of an Order to abstain from doing a certain thing. However, non-compliance with an order to do a certain thing was ‘punished by attachment, ... issued at the instance of the party aggrieved and at his own risk’. There, the onus was on the Applicant to prove both personal service of the Order on the party required to do the act, and that default had been made. Once the Order was produced with proof to the requisite satisfaction of due service and default, the writ issued. ‘Due service’ applied only where the Order contained a special endorsement with the words: ‘... if you neglect to obey this order you will be liable to be arrested under a writ of attachment’: see Braithwaite’s Record and Writ Practice, edn 1858, pp. 166-67
The Court observed this was ‘materially altered’ by Order XLII, r. 87, providing that a judgment, whether negative or affirmative, ‘may be enforced whether by attachment or committal’, and by Order XLIV, r. 2, providing ‘no writ of attachment can be issued without leave to be applied for on notice’. However, Order XLII, r. 7 ‘does not apply [here], for there was no judgment or order upon the defendants to deposit documents’:
Their liability rested upon their undertaking. It is somewhat strange that there is no express authority as to what is the proper mode of enforcing an undertaking as distinct from an order. The question arose in Callow v. Young [(1886) 55 LTR 543] ... before Chitty J., for leave to issue an attachment for breach of a negative undertaking, and leave was granted. It appears, however, ... that the order was stopped on the ground that committal was the proper remedy, not attachment ... The motion was brought on again [and] Chitty J., ... gave leave to amend the notice of motion by asking in the alternative for committal, [directing] the motion to be served again: at 488, per Cozens-Hardy, J.
Holding the only remedy for contempt not arising from non-compliance with an Order to do a certain act was by committal: In re Evans [1893] 1 Ch 259, the Court said an undertaking, whether positive or negative ‘must be enforced by committal and not attachment’. The third objection ‘prevailed’, Notice of Motion being ‘wrong in asking for attachment instead of committal’; Plaintiffs to pay costs: at 488-89, per Cozens-Hardy, J.
O. Hussain v. Hussain [1986] 2 WLR 801
In April 1985, in divorce proceedings the husband, Mr Hussain, gave an undertaking (by his Counsel) not to molest his wife, Ms Hussain. He was present in court when the undertaking was given. It was recited in the formal court Order, however, the operative part dealt solely with costs and withdrawal by Ms Hussain of an application to commit Mr Hussain to prison. This Order, not endorsed with a penal notice, was issued to Ms Hussain’s solicitors but never served upon Mr Hussain. On Mr Hussain’s being called to answer an application to commit him to prison for breach of the undertaking the Court:
Bases of appeal –
In dismissing the appeal, the Court also considered whether different rules might apply to undertakings:
Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in the like terms and the contrary has never been suggested ... [Are] the procedural requirements for enforcement ... not as strict [for] an undertakings [for] an order because Ord. 29, r. 1 of the County Court Rules 1981 and RSC Ord. 45, r. 5 ... Supreme Court, have no direct application to committal for breach of an undertaking. Having now been referred to the authorities, I have no doubt ... this submission is well-founded. Undertakings may be recorded in an order of the court, as [here], but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules apply. The heading to Order 29 of the County Court Rules is ... ‘Committal for breach of order or undertaking’, but this is a reference to Ord. 29, r. 3, which is concerned with undertakings by solicitors as such: at 803, per Sir John Donaldson, MR
However, the ‘codes’ provided by the two rules, ‘founded upon natural justice’ should be applied ‘subject to such modifications as ... necessary or desirable’ as an undertaking is volunteered, ‘however unwillingly, by the person concerned, whereas a judgment or order is imposed’. The distinction ‘has long been recognised’: Callow v. Young (1886) 55 LT 343: ‘It is not necessary to show that the person sought to be attached had knowledge of his undertaking. He must be presumed to have known that he had given his undertaking’: at 544, per Chitty, J.
In practice courts ‘do not require proof of service of a copy of an undertaking before enforcing it’: D. v. A&Co [1900] UKLawRpCh 22; [1900] 1 Ch 484; In re Launder (1908) 98 LT 554 If, however, a Respondent ‘can satisfy the court ... he was unaware of the terms of an undertaking given on his behalf, but not by him personally, this may well, depending upon the circumstances, provide powerful mitigation’. Any undertaking should be recorded and served upon the giver personally, ‘[removing] all scope for argument as to the precise terms ... and ... extent of his knowledge’: at 804 The ‘most obvious’ way was to record the undertaking as an Order of the court, serving it personally on the giver.
There was no requirement for a penal clause or endorsement on an undertaking, however, it could be a ground of mitigation if the giver satisfied the court s/he was unaware of the possible consequences of a breach. Thus it was ‘also desirable that the order [setting out the undertaking] shall contain some notice drawing ... attention to the consequences of a breach of the undertaking’. This should be done so it was clear it related to an undertaking, not an Order: at 804, per Sir John Donaldson, MR
As to the failure to state service had been dispensed with, as required in Nguyen v. Phung [1984] 5 FLR 773, the Court said that case related to breaches of Orders as contrasted with breaches of undertakings, and ‘there were a number of irregularities and ... no decision that this particular irregularity standing on its own would necessarily and in all circumstances vitiate a committal order’: at 805, per Sir John Donaldson, MR
The general practice where an undertaking is given rather than an injunction should be:
9.9 In Contempt in Civil Proceedings, Justice AHCT Gates observed that in Fiji the rule as ‘not as strict as it is in England’, for in Fiji ‘there does not have to be ‘prominently displayed on the front of the copy of the Order served upon that individual a warning that disobedience would be a contempt of court, punishable by imprisonment’: Moerman-Lenglet & Anor v. Henshaw [1992] TLR 555 However, in Practice Direction No. 3 of 2000 ‘Settling of Orders or Sealing’, issued by the High Court at Lautoka, ‘it was suggested that the penal indorsement "be presented in a box at the end of the order, in order that the warning notice be drawn fairly to the attention of the litigant who is to obey the order. The notice should not be in small print"’: Contempt in Civil Proceedings, Unpublished paper, nd, p. 8
9.10 (e) Criminal Standard of Proof: Clearly stipulated in Kumar v. Ram [2001] FJHC 70; Hbm0026s (19 September 2001) and Barclays, De Zoete Wedd Securities Ltd & Ors v. Nadir (1992) TLR 141, as in, for example:
P. In re Bramblevale Ltd [1970] 1 Ch 128
Bramblevale Ltd was in the process of voluntary winding-up. The liquidator asked the Managing Director, EK Hamilton, for the company’s books and accounts. Incomplete records, minus the main account books – cash book and creditors’ ledger – were produced. Upon being summonsed in the Companies Court in November 1968, Mr Hamilton said that being in the boot of his car during an accident, the books – damaged through being soaked in petrol - were inadvertently thrown away by police. An Order made for him to produce the main account books was not complied with. The liquidator took out a summons to commit him to prison for contempt of court. In the hearing, Mr Hamilton said he had the books until the car accident but they had been destroyed. The explanation as to ‘destruction’ of the books was not accepted by the Court, which upon finding his account of the books’ destruction was a lie committed Mr Hamilton to prison. In July, he applied for release on the ground he no longer had the books, apologising and claiming he had purged his contempt. The Court refused to release him, saying there were two possibilities:
but in any event he should give a proper account of what had happened for he had through his own actions placed himself in the dilemma for which he had only himself to blame, so should remain in prison.
The English Court of Appeal allowed Mr Hamilton’s appeal saying it was necessary to ‘see whether there is sufficient evidence that [he] did have these books in the week of November 28 to December 5 of 1968’:
On his own confession, he had them on October 25, 1967; but there is nothing more. That ... leaves two possibilities: either he had them on that date in November, 1968, and wrongfully refused to deliver them; ... alternatively, he got rid of them before that time so that he could not deliver them. Those two possibilities are equally likely. It is not possible to say which ... is correct. The court cannot be satisfied beyond reasonable doubt that he still had the books in November, 1968. That would be conjecture rather than inference – surmise rather than proof. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt. Mr Hamilton’s conduct in telling lies was very reprehensible. But it is not sufficient ground for holding ... he committed contempt of court about these two books. No doubt he was guilty of a contempt in not delivering the other papers in the seven days. He has been long enough in prison for that. I would allow the appeal. Mr Hamilton can be released forthwith: at 137, per Lord Denning MR (Emphasis added)
Further:
... unless ... guilt [were] proved with such strictness of proof as is consistent with the test ‘beyond reasonable doubt’ or ... consistent with such standard as the court, with its responsibility, regards as consistent with the gravity of the charge, a test ... I ... prefer – the decision that he should be imprisoned for contempt of court cannot be sustained ... I have very little sympathy with the appellant; I think he deserved the imprisonment .... he has suffered if only on the technical ground that he was late in producing some of the documents. [H]is deserved imprisonment can be based more broadly than upon that ground alone. However, the reality ... is that the judge sent him to prison on the strength of a presumption, known technically as a presumption of fact – praesumptio facti – that a state of things proved to exist at a certain date must be taken, in the absence of contrary evidence, to have continued to exist, for at any rate a period beyond that date reasonable in all the circumstances. That is a presumption which is occasionally useful as a pragmatic weapon in the absence of evidence. However, here it came directly in conflict with another presumption [of] quite considerable importance, ... that a man is innocent until he is proved to be guilty. I am not saying that ... presumption has very much strength in the case of this a particular appellant; but certainly for the purposes of his appeal it prevails ... to show ... it was impossible to be satisfied beyond reasonable doubt that the books in question existed in his possession at the material date in November, 1968 ...: at 137-38, per Winn, LJ (Emphasis added)
And again:
From the admitted fact that [Mr Hamilton] was in possession of the documents in October, 1967, the judge drew the inference that he was still in possession of them 13 months later. I doubt ... that inference was justified even on the balance of probabilities, and it was certainly not justified ... where the test is proof beyond reasonable doubt. [T]he judge himself in his judgment recognised ... it might be that [Mr Hamilton] had destroyed the documents ... before the order was made: at 138, per Cross, LJ (Emphasis added)
Q. In re Bourne; Davey v. Bourne [1906] UKLawRpCh 56; [1906] 1 Ch 697
Where a debtor executor who disobeyed a Court of Equity Order for payment of a debt had, since appointment as executor, had means for payment but denuded himself of his property filing a petition in bankruptcy to evade payment, the Court had jurisdiction to make an Order for attachment and ‘the Order ought to be made’. However, an Order for attachment would not be made when the debtor executor ‘is not morally blameworthy in the matter, as where he never had any means available for payment of the debt, or where, being insolvent, he honestly seeks the protection of the Court of Bankruptcy’: at 699
9.11 (f) Hearsay Evidence No Basis for Contempt:
R. Regina v. Shokoya (1992) TLR 284
An accused was charged with a serious offence of unlawful wounding. An alleged victim, Mr Adelwola Shokoya, a prosecution witness, did not attend at the trial. He was held in contempt of court and sentenced to 14 days in a young offender institution.
The original trial date – of which Mr Shokoya was notified - was altered for administrative reasons. On the new date, then on another date fixed for hearing, Mr Shokoya and two other witnesses did not appear. The accused was discharged. Upon surrendering two days later, Mr Shokoya was kept in custody for six days pending enquiry into his absence. The prosecuting police officer gave evidence that the new date had been advised by him orally to the mother of one of the other witnesses. He said she had confirmed she told Mr Shokoya of it. She was not called as a witness.
The English Court of Appeal (Russell, LJ, Shiemann and Ebsworth, JJ) quashed the committal Order because the trial judge reached his conclusion on inadmissible evidence – that Mr Shokoya was aware of the trial date and had despite this failed to appear.
9.12 (g) Sentence & Proper Use of Contempt Process: See generally, for example –
S. Ali v. Chaudhary [2004] FJHC 533; HBC0061.2001L (29 March 2004)
Mr Thompson in contempt of High Court Orders in having attempted to lodge caveats on Subdivisional Lots interfering with day-to-day operations of the Plaintiff’s company; he:
‘But the law must be upheld and with it the court’s authority’: at 1, per Gates, J.
T. Bidesi v. Fotofili [1992] FJHC 25; Hbc0579j.91s (14 July 1992)
High Court took into account:
But was ‘also minded of Mr Bidesi’s ‘repeated refusal to abide by orders of the court in this regard ...’: at 3, per Ashton-Lewis, J.
U. Carlton Brewery (Fiji) Ltd v. Western Bottling Company Ltd [1997] FJHC 171; Hbc0228j.96s (13 November 1997)
Mitigation
R1 - Plea of guilty; remorse; age – 51 years; Councillor on Nadi Town Council and sentence for term exceeding 12 months brings automatic disqualification; fine or ‘some other punishment ... will ruin his whole life’
R2 – Wife of R1; Co-Director of offending company but ‘not involved fulltime’; lesser offender; first conviction
Aggravation
Period of six (6) months both disobeyed Court’s Order. False labeling of bottles, selling at profit, Applicant sustaining ‘at least $6,000.000’ loss over six (6) months. R1 ‘almost to the last ... attempted to deceive the Court’
Counsel for Defendants – submits absolute discharge per Penal Code s. 44 or discharge on condition of not committing offence for period not exceeding 12 months
Counsel for Applicant – suspended sentence within the tariff and within the range
Court – suspended sentence inappropriate; sentence must bear ‘some similarity to the offences for which [they] have been convicted’, their ‘conduct ... show[ing] a calculated and deliberate defiance of the orders of this Court and the sentences ... I intend to impose must be likewise calculated and emphatic and designed to bring home to [them] and to any members of the public at large who may have similar ideas, that Court orders are meant to be obeyed and not flouted at the whim of persons subject to them’: at 6
R1 – fine of $2,000.00 for each month - $12,000.000 reduced to $10,000.00 for plea of guilty, in default 6 months imprisonment
R2 – fine of $2,000.00, with $500.00 deduction for plea of guilty: at 7, per Byrne, J.
Kumar v. Ram [2001] FJHC 74; Hbm0026x.2000s (28 September 2001)
Defiance of Magistrates Court Order for vacant possession –
‘... some mitigating circumstances’ –
‘... however there are ... aggravating circumstances’ –
Neither Ms Nisha nor Mr Ram in paid employment, so fines not imposed but custodial sentences ‘are called for to reflect the disapproval of the court of the flagrant breach’ of Magistrates Court order – taking into account Ms Nisha has vacated, sentences ‘suspended on basis of her not committing any offence punishable with imprisonment within the operational period ...’: at 2, per Shameem, J.
V. Coral Sun Ltd v. Fiji Sugar & General Workers Union [2004] FJCA 5; ABU0006.2004S (19 March 2004)
Orders granted by the High Court in ‘lock out’ dispute contrary to provisions of the Trade Disputes Act 1978 (Cap 97), which has penal provisions, where the Minister of Labour ‘made an order ... declaring the lockout unlawful and prohibiting its continuance ...’ Contention by Coral Sun that Minister’s orders unlawful. On appeal:
As to the ... order:
Until further Order of the Court the [Coral Sun] by its servants or its agents is restrained from failing and/or refusing to comply with the Minister for Labour’s ... Order of 24th day of December 2003 ...
... It is a mandate to observe the law as it stands in a situation where the Trade Disputes Act itself provides penalties. It is usually undesirable to add sanctions for contempt as a pressure on a litigant in such a case: at 2, per Ellis, JA
10. Authorities on Contempt & Attachment – Children
Are different principles applicable to govern enforcement of orders made in proceedings involving children, to advance the interests of the children – ‘in their best interests’ – where the conflicting interests of (adult) litigants are in issue? This arose in Gordon v. Gordon (1946) TLR 317 (21 January 1946). Courts have taken a variable approach to the enforcement of orders advancing children’s interests, as authorities show.
W. Hyde v. Hyde [1888] UKLawRpPro 30; (1888) 13 PD 166.
13 October 1881 –
Settlement on marriage of the parties, with Ms Hyde entitled for life to income of her own fortune for her separate use, without power of anticipation
17 December 1887 –
Order nisi for divorce
21 December 1887 –
Order that Ms Hyde deliver up into Mr Hyde’s custody the two children of the marriage and Ms Hyde be restricted from taking them or either of them out of the jurisdiction
No service on Ms Hyde - Court concludes, on evidence, she knew of it, ‘[keeping] out of the way to avoid service’. Children not delivered up; Mr Hyde cannot discover their whereabouts
15 May 1888 –
Ex parte on Mr Hyde’s application –
28 May 1888 –
May/June 1888 –
Writ of sequestration issues, authorising sequestrators ‘to enter upon all [Ms Hyde’s] lands ... and real estate ... and to collect, receive [etc] all rents and profits [etc]’ and directing them ‘to go and enter upon all [Ms Hyde’s] lands ... and real estate ‘ and ‘collect, take, and get into your hands, not only the rents and profits ... but also all the goods, chattels [etc], and detain and keep [them] under sequestration ... until [Ms Hyde] shall clear her contempt, and [the] Court make other order to the contrary’: at 168
6 June 1888
Children made wards of Court
Hearing of Ms Hyde’s appeal against 28 May Orders
On whether lack of service meant no sequestration order:
... under the circumstances, that objection cannot prevail. [A]s a general rule no order will be made for sequestration or attachment unless it [is] shown that there has been personal service of the order disobeyed, but there are exceptions ... If it were proved ... that the person was actually in court at the time the order was made, service would be unnecessary ... to obtain process for contempt, and personal service is also dispensed with if it is shown that the reason [for] no personal service is that the person to be served has evaded service: at 171-72
Held evidence showed Ms Hyde’s mother, Mrs Felgate, communicated so Ms Hyde, ‘knowing of the order, was keeping out of the way ...to avoid service’ and, consistent with Allen v. Allen 10 PD 16, sequestration was ordered: at 172, per Cotton, LJ Hence, the sequestration order against Ms Hyde was valid; not so vis-à-vis her relatives:
There is no issue at all before the Court with reference to which these parties can attend as witnesses. An order was made by which it was directed that these children should be handed over to the husband. The Court decided [Ms Hyde] has been guilty of contempt in not obeying that order. The case, therefore, has been decided and there is no issue at all before the Court with reference to which these persons can be summoned as witnesses ... [T]herefore, that part of the order must be discharged: at 174, per Cotton, LJ; Bowen and Fry, LJJ in agreement
X. Favard v. Favard (1896) 75 LT 664 (21 December 1896),
16 July 1886 –
Decree nisi in undefended suit pronounced; custody of the child of marriage given to Ms Favard. Respondent Mr Favard has the child in his custody at the time, with a Fulham, London address
17 July 1886 –
Order that the child ‘be forthwith delivered up and do remain in the custody of the petitioner until further order of the court’, directing ‘that such child be not removed out of the jurisdiction of the court without its sanction’
22 July 1886 –
Clerk to Ms Favard’s solicitor attends at the Fulham address and ‘[sees] the landlady’
23 July 1886 –
Clerk attends again at the Fulham address; landlady says she ‘does not think’ Mr Favard ‘is up yet’ but calls upstairs: ‘Mr Favard, somebody wants you,’ with a male voice in reply: ‘I will come down.’ The clerk overhears talking on the landing above, then a man comes down. Believing him to be Mr Favard, the clerk gives him a copy of the 17 July 1886 Order. The man throws it down
23 July 1886 –
Order returned to Ms Favard’s solicitor through the post
July 1886 –
Upon its receipt, Ms Favard’s solicitor writes to Mr Favard by registered letter to the Fulham address:
I beg to give you notice that, if the order directing you to give up the custody of the child of the marriage a copy of which was served upon you this morning, is not forthwith complied with, I shall, without any further notice to you, apply to the court to commit you to prison, for contempt of court: at 665
28 July 1886 –
Ms Favard and solicitor’s clerk go to Fulham address, finding the clerk served the Order on Mr Evans, the landlady’s brother and Mr Favard’s ‘great friend’. Landlady tells Ms Favard that Mr Favard has not lived there, but slept there ‘on a few occasions’, had letters addressed there, but has ‘not been there for some days’
July/August 1886 –
Ms Favard employs a private detective who finds Mr Favard in Glasgow with the child, having gone after the date of the Order
10 November 1886 –
Order served on Mr Favard at his workplace, following correspondence between the private detective and Mr Favard’s Glasgow lawyers
Upon an ex parte application’s being made and renewed on the part of Ms Favard for an Order of attachment, with issues including service out of jurisdiction, whether the general rules or rules governing matrimonial causes apply, and whether ‘forthwith’ is sufficiently particular as to time, the Court holds the Order of attachment ‘could go, for what it is worth’ (a reference to Mr Favard’s being out of the jurisdiction). The Court accepts Re Evans; Evans v. Noton 68 LTR 271 - that personal service is not required, because this is a matter of attachment, Mr Favard’s being ordered to ‘do something’ - continuing: ‘My only doubt was whether the word "forthwith" was sufficiently definite to enable [Ms Favard] to say that [Mr Favard] had disobeyed the order. But, after all, the matter is balanced up in ... that it is simply a question of evidence ...’: at 666
Y. O’Donovan v. O’Donovan [1955] 1 WLR 1086
Z. Phillips v. Phillips (Unreported, 23 May 1955) – Note [1955] 1 WLR 1087
In O’Donovan v. O’Donovan - Court makes an Order for committal where:
12 March 1953 –
Ms O’Donovan obtains decree nisi for dissolution of marriage to Mr O’Donovan; later, decree made absolute
7 December 1953 –
June 1954 –
Sending M to boarding school being deferred upon medical advice
Mr O’Donovan fails to return M
Ms O’Donovan applies for committal Order for contempt of court
Mr O’Donovan’s whereabouts unknown - he cannot be served with notice of proceedings. Order for committal made.
In Phillips v. Phillips –
Order for committal made in the absence of Mr Phillips, the Court’s being referred to O’Donovan v. O’Donovan:
In O’Donovan v. O’Donovan Counsel refers to Favard v. Favard (1896) 75 LT 664 (21 December 1896), submitting as a basis for the making of the committal Order in Mr O’Donovan’s absence and without service that people breaking undertakings ‘such as that given in the present case, frequently remain out of the jurisdiction. If no order for committal may issue, there being no possible of service out of the jurisdiction, undertakings of this nature are rendered largely nugatory’: at 1087
AA. Gordon v. Gordon (1946) TLR 317 (21 January 1946)
English Court of Appeal holds that when an Order requires one parent of a child to hand over custody of that child to the other:
Decision based in Rule 62(3) of the Matrimonial Causes Rules1944:
A decree or order requiring a person to do an act thereby ordered shall state the time within which the act is to be done, and the copy to be served upon the person required to do the same shall be endorsed with a [penal] notice ...
29 November 1943 –
Order for custody of the child in favour of Ms Gordon; liberal access to Mr A. Gordon (November 1943 Order)
9 November 1945 –
Mr A. Gordon, having child on access, makes application for rescission of custody order
19 December 1945 –
Summons heard –
21 December 1945 (afternoon)-
Order on ex parte application by Ms Gordon –
Upon the application of counsel for the respondent, it is ordered that by or before 7 o’clock p.m. today, the petitioner do hand over to the respondent the child of the marriage – namely Helen Frances Gordon (December 1945 Order II)
22 December 1945 –
Notice of Motion served on Mr Gordon –
Take notice that the respondent by counsel intends to apply to Mr Justice Lynskey in his room at 12.15p.m. on Monday, December 24, for an order for your committal or attachment on the ground that you have failed to comply with the order of this honourable Court dated December 21, 1945 [that is, the December 1945 Order II]
31 December 1945
Order on Ms Gordon’s ex parte application that Mr A. Gordon –
... be committed to his Majesty’s Prison, Brixton, in the County of London, for contempt of Court in that he failed to comply with the requirement of the [December 1945 Order II] requiring him to hand over to the respondent by or before 7 o’clock p.m. on that date the child of the marriage – namely, Helen Frances Gordon.
Order directed to lie in the office pending the hearing of the appeal.
On particularity, Court notes neither December 1945 Order I & Direction (‘by 6 o’clock p.m.’) nor December 1945 Order II (‘by or before 7 o’clock p.m.’) states place at which hand over to occur, and if it were the intention Mr Gordon ‘should hand the child over at his house, the order ought to have specified’. Its failing to do so is fatal – the appeal should succeed. As to service, on the evening the December 1945 Order II was granted, Mr Gordon arrived home at 8.00pm, its then being served on him by Ms Gordon and a process server. In the absence of evidence they were present by or before 7.00pm, Court was asked to infer Mr Gordon ‘deliberately avoiding service’. Court declines to do so.
‘One thing stands out in this case with the utmost clearness,’ says the Court, namely that Mr A. Gordon ‘made up his mind deliberately and with full knowledge of the possible consequences to defy the orders of the Court’. He ‘deliberately defied’ the December 1945 Order I & Direction; and whether ‘he knew or did not know before 7 o’clock on December 21’ of the December 1945 Order II, ‘he determined ... he would not hand over the child at any time pursuant to that order. The child has since been made a ward of Court ...’: at 218, per Lord Green, MR Knowledge an Order is made cannot, however, substitute for service, as both attachment and committal ‘are very technical matters’ affecting ‘the liberty of the subject’, and such rules as exist ‘must be strictly obeyed’:
However disobedient the party may be ..., he is entitled to his freedom unless the process of committal or attachment has been carried out strictly in accordance with the rules. I [speak now not] of contempts in the face of the Court, but ...by disobedience of an order directing something to be done outside the Court ...: at 220, per Lord Greene, MR
As to authority:
However:
The process of enforcing orders in civil litigation, made for the benefit of one party against the other party, by committal or attachment is nothing more than a form of execution, and if the successful litigant fails to comply with the strict rules he is the sufferer, because he has not succeeded in protecting or enforcing his right by this effective method. In the case of infants, however, the position is fundamentally different, since in their case orders are not made for the benefit of any litigating party, such as a party to a divorce suit, but for the benefit of the infants. Accordingly, if, when a party to litigation seeks to enforce an order made for the benefit of an infant, the rules are not complied with, it is the infant who suffers. It is, therefore, desirable that special rules should be made so that a person cannot flout an order affecting an infant’s interests and avoid committal or attachment merely because the person seeking to enforce the order has not complied with the rules: at 217, per Lord Green, MR, du Parcq and Tucker, LJJ
Lord Greene, MR adds he could not ‘help thinking that, if this case has shown one thing’:
... the desirability of making some special rules [on] enforcement by committal or attachment of orders [respecting] an infant [requiring] protection of the Court, who ought not to be prejudiced by finding that an order perhaps of an urgent and vital nature affecting its interests can be flouted by the person against whom it is made, [who] cannot be committed or attached, [because] the person seeking to enforce the order has not complied with the rules. It becomes more manifestly unfortunate – I will not say absurd – that strict compliance with the rules [of] service is required where the person against whom an order is made is perfectly well aware of it, is perhaps in court when it is made, and deliberately sets himself to flout it. In ... ordinary litigation between parties the strictness requiring service of the order ... one can understand, but why should an infant suffer by a strict rule of that kind, why should the Court’s order in the infant’s favour for its protection be disregarded, without remedy, when the parent against whom the order is made is perhaps sitting in Court?: at 219
AB. Kumar v. Vijayantimala [2003] FJHC 53; HBA0005J.2000L (8 October 2003)
Here, it was contended that Mr Kumar and Ms Vijayantimala were in dispute as to custody/residence and maintenance (spousal and child). The parties were present when the Magistrate delivered her decision on 16 November 1999, Ms Vijayatimala with her Counsel, Mr Kumar in person. Notice of Appeal was filed and a stay was refused on the basis of failure to pay child maintenance, citing Anand Kumar Singh v. Esteen Urmila Singh (Unreported, Civil Case No. 6 of 1988, Lautoka High Court, 6 November 1990); Hadkinson v. Hadkinson (1952) 2 All ER 567.
His Lordship Justice Gates extensively reviewed the authorities, including Hadkinson v. Hadkinson, and Leavis v. Leavis [1921] P. 299, at 4-6, saying:
It must not be imagined that a party ordered to make maintenance payments by a magistrate has a right to ignore the order on the ground that he or she disagrees with the decision and intends to appeal. The obligation is to obey first ... Where the orders of the court make provision for a child’s welfare the rule is even more strict. [in Hadkinson v. Hadkinson], Romer LJ went on to say (at 292):
Where, however, the order relates to a child the court is (or should be) adamant upon its due observance ... Such an order is made in the interests of the welfare of the child and the court will not tolerate any interference with or disregard of its decisions upon these matters. Least of all will the court permit disobedience of an order that a child shall not be moved outside its jurisdiction.
...: at 5 (Emphasis added)
A failure to pay child maintenance ‘may be thought to impede the course of justice less than ... removal of a child out of the jurisdiction in defiance of a court order, but it is nonetheless a serious impediment to justice:
It is a significant factor also to be taken into account when considering how to exercise the discretion whether or not to hear an appeal, such as this, which seeks orders of setting aside and re-trial. A child cannot be left dangling unprovided for whilst enforcement proceedings are undertaken. The court’s machinery and process is frequently too slow to achieve a sufficiently acceptable and safe remedy: at 5, per Gates, J. (Emphasis added)
His Lordship referred again to Hadkinson v. Hadkinson, where Denning LJ ‘summed up the position ...’
Applying this principle I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, b6 making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it sold not be removed.
The present case is a good example of [one] where the disobedience of the party impedes the course of justice: at 298
Finally in Kumar v. Vijayantimala it was held that because ‘non-provision for a child’s welfare and failure to comply with a court’s order can be regarded adversely as factors of the utmost significance’:
... an applicant can anticipate that a court will not advance his or her case until compliance is attended to. The onus will be upon the would-be appellant to satisfy the court, once non-compliance is raised, that there has indeed been compliance. This has not been done. The community expects that the courts will prevent children becoming the deprived by-products of failing marriages, and will prevent one party becoming marooned with an unlawful, one sided, and unfair responsibility for child support: at 6, per Gates, J. (Emphasis added)
11. Constitution & Rules - Family Law & General
Section 124 of the Constitution provides that the Supreme Court, Court of Appeal and High Court ‘have power to punish persons for contempt of court in accordance with the law’. The Court of Appeal in Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 46; ABU0011&Abu0011A.2004L (22 April 2005) discussed the powers of the Court of Appeal and High Court in respect of the Court of Appeal Act (Cap 12) and Court of Appeal Rules, and the High Court Rules 1988 in the context of a contempt where the matter is on appeal from the High Court, and the powers of a single Judge of Appeal. There is no reference to the constitutional provision.
11.1 (a) High Court Rules: The High Court Rules deal extensively with committal for contempt, both in the face of the court and in failure to comply with Orders, and with contempt in the context of proceedings and where no proceedings are on foot: Order 52 Insofar as enforcement of judgments and Orders, Order 45 refers to sequestration and committal. Authorities confirming that the Rules should be adhered to strictly are relevant here.
11.2 Order 45, r. 1 relates to enforcement of judgments and orders for the payment of money (where not required to be paid into court). Order 45, r. 4 covers those relating to payment of money and other matters where an order for committal may be made. Order 45 may be relevant in the present application, subject to any specific Family Law provisions:
Enforcement of judgment to do, or abstain from doing, any act
4. - (1) Where –
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or as the case may be within that time as extended or abridged under Order 3, rule 4, or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act,
then, subject to the provisions of these Rules, the judgment or order may be enforced by one or more of the following means, that is to say –
(i) with the leave of the Court, a writ of sequestration against the property of that person;
(ii) where the person is a body coronate, with the leave of the Court, a writ of sequestration against the property of any director or other officer of the body;
(iii) subject to the provisions of the Debtors Act, an order of committal against that person or, where that person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 5 requiring the act to be done within some other time, reference in paragraph (4) of this rule to a judgment or order shall be constructed as references to the order made under rule 5.
(3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of payment the assessed value of the goods, the judgment or order shall not be enforced by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.
11.3 Where a judgment or order requires a person to do an act at or within a specified time, Order 45, r. 5(1) gives the Court power to make an order requiring the act to be done within another time, ‘being such time after service of that order’ or ‘such other time as may be specified’ in the (new) order. Where an order or judgment does not specify a time within which an act is to be done, the Court has power subsequently to make an order requiring the act to be done ‘within such time after service of that order’ or ‘such other time as may be specified therein’: Order 45, r. 5(2) An application for change or inclusion of time must be made by summons with the summons served on the person required to do the act in question.
11.4 Order 45, r. 6 sets out requirements for personal service – personal service of an order or judgment on the person required to do or abstain from doing an act must precede enforcement by committal proceedings, and when a time limit is set for doing an act, service must be effected before expiration of that time: Order 45, r. 6(2) Any order for extension or abridgment of time requires personal service of that further order: Order 45, r. 6(5)
11.5 Personal service may be dispensed with:
11.7 Under Order 45, r. 6(4) requires a penal endorsement on the copy of an order served –
(a) with an order requiring an act to be done/to be done within a specified time or abstain from doing an act, that if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and
(b) with an order requiring a body corporate to do or abstain from doing an act, that if that body neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if the body corporate disobeys the order, he is liable to process of execution to compel the body to obey it.
11.8 The High Court’s power to punish for contempt may be exercised by committal in High Court proceedings, proceedings of an inferior Court and ‘otherwise than in connection with any proceedings’:
11.9 Applications and hearings are governed by Order 52, rr. 3, 5 and ‘shall be heard in open court’ but ‘may’ be held in camera where the application:
11.10 A person is entitled to give oral evidence at his committal hearing: Order 52, r. 5(4) Execution of the committal order may be suspended: Order 52, r. 6 A person committed can be discharged; Order 52, r. 7 Order 52, r. 8 preserves any other powers of the High Court to make orders vis-à-vis contempt, and Order 52, r. 9 preserves the High Court’s power to summarily commit for contempt.
11.11 (b) Family Law Contempt: At the hearing on 3 March 2009, Counsel for Ms R referred to provisions of the Family Law Act 2003
11.12 The Family Law Act makes special provision for enforcement of Orders relating to child custody/residence and access/contact: Part VI – ‘Children’ and see particularly section 73, Division 5 - - ‘Parenting Orders Other than Maintenance Orders’, Subdivision B – Arrest of Offenders’, and Division 0 – ‘Injunctions in Relation to a Child’. Further, as to orders and judgments under the Family Law Act generally, Part XI – ‘Recognition of Orders’ and Part XIII – ‘Enforcement of Orders’ are relevant. In particular, section 196 covers contempt:
Contempt
196. (1) A court which has jurisdiction under this Act may punish persons for contempt in the face of the court when exercising that jurisdiction or for wilful disobedience of any order made by the court in the exercise of jurisdiction under this Act.
(2) The Rules of each Family Division may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(3) Where a person in contempt is not a corporation, the court may punish the contempt by committal to prison or fine or both.
(4) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(5) An order under this section may include an order for –
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
11.13 Does the omission in section 142 of the Constitution of reference to the Magistrates Court have any effect on the Magistrates ‘Family Court’ powers of contempt? That may be an issue for another time.
11.14 The Family Division of the High Court has powers in relation to contempt by reason of section 142 of the Constitution, section 196 of the Family Law Act, and the High Court Rules 1988 – presently there are no Family Division Rules.
12. The Present Application
The immediate application is that the Court should hear the contempt proceeding in the absence of Mr K, the Respondent.
12.1 Procedural fairness requires courts to comply with a party’s right to be heard. Parties need not invariably must exercise that right though physical presence: ‘hearing’ can be ‘on the papers’, by affidavit and/or written submissions or other means. However, as contempt is a serious matter – ‘going to the liberty of the subject’ - it is unlikely that as a general rule the courts would be accepting of a proposition that a hearing for contempt should go ahead without the alleged contemnor present. That party has a right to give evidence, for example: Order 52, r. 5(4)
12.2 This Court (both in Lautoka and Suva) has video-link facilities used for hearings in Fiji and where witnesses are overseas – for example, Australia, Ireland. There is no reason why this facility could not be used in the present case: Mr K is in Chicago, Illinois, US.
12.3 Mr K’s reasons for not being present are set out in his Affidavit. On 11 February 2009 when he gave evidence, he advised he wished to travel to Chicago (where it is now apparent his mother is resident) but did not advise of any likelihood of his being unable to return for the hearing of the contempt application. Indeed, he had notice of the hearing, amongst other matters being present in Court when the date of the contempt hearing was set for 2 March 2009. On 11 February 2009 he was permitted to travel overseas upon the basis of his representations made to the Court, despite the pending contempt hearing. It was explicit that he would return for the 2 March hearing.
12.4 In State v. Fiji Post and Telecommunications Employees Association [1991] FJHC 68; HBJ0005.1991 (3 December 1991) the hearing of an application for contempt in the absence of the Contemnors and their ‘regular’ Counsel was in issue. Counsel ‘handling the matter personally’ (for the Contemnors) had written to the Chief Registrar advising an application for adjournment would be made and requesting the Chief Registrar to notify the other parties. No copy of the letter appeared on the Court file, however, the other parties’ Counsel had copies. In refusing the adjournment, the Court emphasised the ‘disruption of the smooth functioning of the Courts’ caused by such applications with which the ‘Courts of Fiji have been plagued’. His Lordship Justice Scott said:
When dates for hearing have been fixed ... a judge has been allocated, last minute adjournments result in a loss of valuable court time which can ill be afforded. The waste of Court time is most unfair to those many litigants anxious to have their cases heard. A combination of courts lying idle and a long backlog of cases awaiting disposal is clearly unacceptable. In committal cases, there is the additional factor of the court’s interest in the application which must be taken into account. What, after all, is being alleged is that an order of the court has been disobeyed. The court itself has a clear interest in establishing whether contempt has in fact occurred and if so having the contempt purged: at 2, per Scott, J. (Emphasis added)
12.5 Although in a ‘small number of cases of especial difficulty’ a ‘sympathetic hearing’ might be given an application where there is some ‘unavoidable and last moment’ impediment to Counsel’s attending, in the case at hand, ‘alternative counsel could and should have been briefed’.
12.6 Counsel for the Public Service Association (PSA), the Applicant, noting the Contemnors’ absence ‘suggested ... the nature of the application [meant] the hearing should be adjourned’:
I was not impressed with the submission. In my view, a Court considering an application for committal for contempt is not bound to adjourn the hearing of the applicant’s case merely because of the non attendance of the alleged contemnors. Were it the case that where alleged contemnors decline or fail to appear the Court would have to adjourn, then the procedure for applying for their committal could easily and simply be frustrated: at 2, per Scott, J.
12.7 No reason was provided for the Contemnors’ non-appearance, with no Affidavit filed on their behalf in reply to the PSA’s supporting application of May 1991, albeit leave was granted in June and the hearing originally set for September, coming on in November 1991. His Lordship said an applicant might ‘expect to obtain a suspended order’ only – as per Order 52, r. 2 – where proceeding in a contemnor’s absence, and ‘in the circumstances’, he ‘saw no reason not to hear the applicant’s case’: at 2
12.8 In the upshot, the Court dismissed the application. The Affidavit in support did not disclose ‘anything near sufficient to justify an order for committal’, ‘not even amount[ing] to evidence that the alleged contemnors have breached the order at all’. The Court refused a further adjournment application, made to call evidence of breach through an ‘on standby’ witness. Grounds relied on at the hearing of a committal application ‘should be those placed before the court when the application for leave is made’: Order 52, r. 5(3), and ‘even had the witness been present I should not have granted ... leave to call him ...’: at 2, per Scott, J.
12.9 In the present case, Mr K has provided no answering Affidavit vis-à-vis Ms R’s Affidavit in support of the contempt application, despite its having been made a month before the scheduled date of hearing – although in his 2 February 2009 Affidavit he said he ‘did not wish to hand over the child’s passport nor sign an application for a new one ...’ On 11 February, Mr K’s being present in Court, his Counsel did not make any application for him to give oral evidence on the matters attested to in that Affidavit or the Affidavit of Service filed in respect of Mr K’s alleged refusal to accept the Orders of 3 February 2009. This, despite Mr K’s being sworn in and giving evidence in relation to his travel plans and ticketing commitments and the date having been set by reference to the contempt application.
12.10 As it proved, the Court’s time was not ‘wasted’ in that the hearing on 2 March 2009 the substantive application vis-à-vis jurisdiction proceeded in any event by Counsels’ cooperation and Ms R’s Counsel withdrawing objection to that matter’s being heard before the contempt hearing.
12.11 Mindful of what was said in State v. Fiji Post and Telecommunications Employees Association [1991] FJHC 68; HBJ0005.1991 (3 December 1991), it nonetheless appears to me at the present time that the Court should not proceed in Mr K’s absence. Rather, liberty to apply should be incorporated into the Court’s Orders this day, so that should the Applicant determine to proceed with the contempt application, alternatives may be explored – whether as to hearing by video-link, or with Mr K in person.
12.12 Whatever the Court’s determination as to jurisdiction, Mr K will need to return to Fiji at some time. If the Court holds that issues of custody/residency and contact/access should be decided under US law, then Mr K will have to make arrangements to collect the child G K to return her to that country: the evidence before the Court is that Ms R ‘overstayed’ her visa in the US, making it difficult for her to return to transport G K there. If, however, the Court’s determination is that Fiji has jurisdiction, Mr K will need to return to provide instructions in person to his Counsel and make arrangements in relation to the child, exercising his custody/residency and/or contact/access with her and enabling her to exercise her rights in that regard with him.
12.13 At that time, the application for contempt might proceed. Alternatively, should time go on without Mr K’s reappearance or cooperation by video-link, an application for hearing in Mr K’s absence may be revived. In such case, the requirements for making of an application for contempt should be reviewed vis-à-vis the present application.
13. Summary of Requirements for Contempt Application/Committal Proceedings
Having traversed the requirements for contempt applications and committal or attachment proceedings, basic requirements are précised here.
Orders
Undertakings
General
ORDERS
Jocelynne A. Scutt
Judge
High Court, Family Court/Division
Suva
30 March 2009
[1] Note: This item was added as an amendment by leave at the hearing on 3 March 2009.
[2] Contempt in the face of the Court is not in issue here so those authorities are not canvassed. Some aspects of jurisdiction and the
‘proper’ venue (in a particular circumstance) are covered in Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 46; ABU0011&Abu0011A.2004L (22 April 2005),at paras [24]-[29].
[3] Not all the following authorities apply to the present case – for example, the position vis-à-vis companies and directors
of companies. However, the principles applicable relate generally to all cases where contempt is sought as a remedy and the particular
features of the present case illustrate the need for a setting out of those principles as a readily accessible resource.
[4] Order 52, r. 5 Supreme Court Rules 1988 provides for particular applications for contempt to be heard in camera; even then, certain matters must be stated in open court
– see later.
[5] See In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972, where the Supreme Court makes observations as to the distinction between attachment and committal as
canvassed in Re Evans [1892] UKLawRpCh 178; [1893] 1 Ch 252, at 259ff, and existing prior to Order 52(1) of the Supreme Court Rules 1965 (UK) upon which the Supreme Court Rules 1988 are based.
[6] See Pickering v. Murphy [1997] FJHC 191; Hbc0447d.97s (28 November 1997) – an undertaking is given to the Court, rather than being an ‘agreement’ between
parties; hence the remedy for breach is an action for contempt, not for breach of contract: at 8, per Byrne, J. quoting Hanbury and Maudsley Modern Equity, 13th edn, p. 730 – ‘Conditions and Undertakings’:
One reason for the practice of undertakings is that it aids the court in achieving its object of abstaining from expressing any opinion
on the merits until the hearing. While an undertaking by the plaintiff is enacted for the benefit of the defendant, it is not a contract
with the defendant. The undertaking is given to the court, so that non-performance is a contempt of court and not a breach of contract.
[7] Although there is no requirement for Orders to be sealed for a party to be in contempt: Bale v. Fiji Fish Company Ltd (No 2) [1998] FJHC 143; Hbc0146d.97s (23 October 1998); BP South West Pacific Ltd v. Pratap [2004] FJHC 374; HBC0433.1996L (23 February 2004); Dee Cee’s Bus Services Ltd v. Credit Corporation (Fiji) Ltd [2003] FJHC 102; HBC0480D.2000S (2 May 2003) wisdom nonetheless requires parties to be prompt in taking out sealed Orders, ensuring that service
can occur promptly and time-lines or time-limits can be met by the party required to meet them.
[8] See generally Hussain v. Hussain [1986] 2 WLR 801, and particularly Neill, LJ at 805.
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