Cauchi v Judicial Appointments and Discipline Panel [2015] TOCA 9; AC 33 of 2014 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

CIVIL JURISDICTION AC 33 of 2014
NUKU'ALOFA REGISTRY [CV44-2014]

BETWEEN:

JOHN CAUCHI
Appellant

AND:

JUDICIAL APPOINTMENTS AND DISCIPLINE PANEL
Respondent

Coram: Salmon J
Moore J
Blanchard J

Counsel: Mr Niu SC for the Appellant
Mr Kefu A/AG for the Respondent

Date of Hearing: 25 March 2015
Date of Judgment: 31March 2015

JUDGMENT OF THE COURT

[1] The issue on this appeal is whether the Supreme Court correctly determined that the appellant, Mr Cauchi, should not be granted leave to review a decision of the Judicial Appointments and Discipline Panel. The Panel had dismissed Mr Cauchi's complaints against Lord Chief Justice Scott relating to trial of an action by Mr Cauchi against the Kingdom of Tonga. That action, which is still ongoing, was for wrongful dismissal from the position of Attorney-General. In agreement with the Panel, the Hon. Justice Cato took the view that the complaints were premature since Mr Cauchi should first have exercised a right of appeal to this Court against the decision of the Chief Justice.

[2] The trial of Mr Cauchi's action for damages had been before the Lord Chief Justice and a jury commencing on 19 November 2013. On 26 November 2013 Mr Cauchi applied for the jury to be discharged. The Lord Chief Justice acceded to that application and on 13 January 2014 gave his written reasons for making the order discharging the jury.

[3] He said that on the morning of the trial counsel for the Government, the then Attorney-General Mr Adsett SC, had sought clarification of how the trial was to proceed, saying complicated questions of law and fact were involved. Mr Adsett asked whether it would be appropriate for questions to be framed for the jury. The Lord Chief Justice went on to record in his reasons (at [11]) that it had been agreed with Mr Adsett and with Mr Niu SC, who was counsel for Mr Cauchi;

(i) that the issues of fact disclosed by the evidence would be framed as written questions for the jury to answer; and

(ii) that all submissions of law would be made "at the close of the case".

[4] The trial then began. Three days had been allocated. However the evidence for both sides was not completed until late on the fifth day. Counsel then handed up proposed lists of questions for the jury. The next morning Mr Niu made an application asking for the jury to be discharged. Mr Adsett opposed the motion and disagreed with Mr Niu's suggestion that the "procedure adopted by consent(a reference to the "agreement" recorded in [3] above) was in any way in breach of the requirements either of the Constitution or of the Supreme Court Act. Later in his reasons (at [25]) the Lord Chief Justice said that he agreed with Mr Adsett:

"[25] ... A procedure was agreed between counsel and the Court and was implemented. According to Mr Niu, his client instructed him to withdraw his consent to the procedure three days after it had been implemented and after he had returned to Australia. By then all the evidence had been heard. It is evident to me that the Plaintiff's belated unhappiness with the perceived consequences of the procedure agreed to is the real, but unacceptable reason for the motion to discharge being made.

[26] I did not discharge the jury (as repeatedly but mistakenly reported in the media) because I accepted that I had misdirected the jury. In my opinion no "directions" in the sense of the term as usually understood, namely as part of a summing up, were ever given to the jury at all and therefore no question of misdirection arises.

[27] I decided to discharge the jury because the decision by the Plaintiff to withdraw from the agreement reached taken together with the failure of all concerned sufficiently to prepare for the trial left the Court, and in particular the jury, in an impossible position..."

[5] The Lord Chief Justice gave his explanation of why this was the case by reference to the "difficult questions which the Plaintiff's decision to request trial by jury raises". He referred to cl.101 of the Constitution which required the Judge to "direct the jury upon the law bearing upon the case", saying that this requirement was repeated in s.13(3) of the Supreme Court Act:

"After the evidence has been heard the judge shall sum up the evidence and explain to the jury the law that bears upon the case. The jury shall then consider the evidence and deliver their verdict".

The emphasis was added by the Lord Chief Justice who said that the final sentence of s.13(3) was "clearly a reflection of the basic principle that the facts are for the jury to consider and evaluate whereas the law is for the judge". The problem in the case, however, was that the questions of law raised "are particularly difficult to answer let alone explain to the jury especially when the explanations have to be interpreted from legal English into lay Tongan".

[6] The Lord Chief Justice went on:

[31] In paragraphs 11 to 13 of his submissions (and in his opening remarks to the jury) Mr Niu appeared to be suggesting that the only procedure which conformed with the requirements of the Constitution was for all questions of law arising in the case to be explained to the jury which would then apply the law as understood by them to the facts in order to arrive at a general verdict. In my view that approach is neither sensible nor correct.

[32] In my opinion the purpose of the Constitutional provisions referred to by Mr Niu is protective and especially so where the "large amounts" involved have the result that the action is only triable in the Supreme Court. As already pointed out, the function of the jury in a civil trial is to assist the judge to decide disputed questions of fact. Doubtless, these questions may themselves involve questions of law such as admissibility, corroborative effect, identification and so on which are routinely dealt with by warnings and explanations in criminal cases. But I do not accept that an attempt should be made to explain complicated questions of law to a jury as apparently envisaged by Mr Niu. Such a course does not protect against miscarriages of justice.

He then elaborated on the difficulty he saw but it is unnecessary for us to refer to that part of his reasons.

[7] The Lord Chief Justice concluded his reasons by saying that the "sudden decision mid-trial" by Mr Cauchi to "withdraw from the agreed procedure" and the filing of the motion to discharge the jury had left the Court in an impossible position. The several fundamental issues raised clearly required careful consideration before any further steps including rulings could be taken. It was not acceptable to stand the jury by for several weeks. The trial had already run to twice its allocated length. He pointed out the inconvenience this had caused. He adjourned the case for a directions hearing "after counsel have had an opportunity to consider what further steps need to be taken before the matter is again set down for trial".

[8] Mr Cauchi made his complaint to the Panel by letter dated 26 February 2014. The complaint was against both Lord Chief Justice Scott and Mr Adsett. He took issue with what was said in the Lord Chief Justice's account of what had occurred and, in particular that there had been any agreement about procedure. He said that he had instructed his counsel to appeal the matter following the release of those reasons. For present proposes it suffices to summarise the complaint against the Lord Chief Justice as alleging breach of his judicial oath in three respects:

(a) By depriving Mr Cauchi of his right under the Constitution of Tonga to a trial by jury;

(b) By acting with partiality against Mr Cauchi by wrongfully stating in his reasons for decision that Mr Cauchi or his counsel had agreed that the trial should be conducted on the basis that the role of the jury was to determine all issues of fact and that it was for the Judge to determine questions of legal liability arising from the jury's determinations. The Lord Chief Justice had also wrongfully allowed a claim for costs against Mr Cauchi for the aborted trial; and

(c) By acting with partiality in (i) refusing to allow Mr Cauchi to give or produce certain evidence (ii) the questions he had asked of witnesses at the trial and (iii) being discourteous to Mr Cauchi in front of the jury when Mr Cauchi was giving evidence.

[9] Mr Cauchi contended in his complaints to the Panel that it should recommend to his Majesty in Council that Lord Chief Justice Scott be dismissed from office because of his alleged misconduct.

[10] The Panel, however, in a decision dated 25 March 2014, noted that Mr Cauchi had said that he had instructed counsel to appeal against the Chief Justice's decision. In those circumstance, the Panel said it would be quite improper for it to consider the matter further since that would risk interfering with the course of justice. The litigation, including any rights of appeal, must be pursued and determined before the Panel would entertain further consideration of the complaint. Plainly, the Panel was leaving it open to Mr Cauchi to come back to it after the contemplated appeal had been determined and the litigation was at an end.

[11] Mr Cauchi then sought judicial review of the Panel's decision. Cato J declined to give leave for that review. He pointed out that the complaint to the Panel was involved principally with the propriety of the Lord Chief Justice's ruling and his interpretation of provisions of the Constitution and of the Supreme Court Act. There was also the issue of whether Mr Cauchi through his counsel had agreed to the approach which the Lord Chief Justice had taken to the respective responsibilities of the jury and himself. In Cato J's view, such issues could only properly be decided authoritatively by this Court on an appeal. Other issues concerning the Lord Chief Justice's conduct, Cato J said, could only be properly evaluated on appeal. He concluded that the Panel had been right to consider that it was premature to entertain the complaints; the approach taken by the Panel could not be faulted. In the absence of rulings from this Court, the Panel could not properly determine whether the Lord Chief Justice's conduct of the trial had been in error, still less that he had not been impartial and that he was guilty of serious misconduct.

[12] Cato J said also that the first two complaints were essentially of error of law and should be dealt with in the normal way through an appeal to this Court. Further, he said (at para [14] of his judgment)that the complaints relating to procedure or the manner of questioning did not reach the threshold where a complaint of breach of discipline or misconduct was justified. Whether the Chief Justice's conduct was appropriate or manifested bias had to be considered in the whole context of the case and was also an appeal question, as was argument about the admissibility of evidence. Again, the complaints did not in context attain the threshold standard that Mr Cauchi needed to meet to demonstrate serious misconduct.

[13] Cato J declined to give leave to review the decision of the Panel and awarded costs to the respondent. The present appeal is against both those decisions of Cato J.

[14] At some time after the letter of complaint was sent to the Panel (the date is unknown to us) Mr Cauchi withdrew his instructions to counsel to bring an appeal against the order discharging the jury. That was understandable as it would have been an appeal against a decision which Mr Cauchi had himself applied for and which could not be reversed (by reinstating the first trial). His objection is not to the order itself but to the events which led to it and to the reasons given by the Judge. An appeal against an order in form wholly favourable to the appellant will rarely be entertained. As the New Zealand Supreme Court said in Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008] 1 NZLR 13 at [25]:

[25] It is fundamental that an appeal must be against the result to which a decision maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.

[15] It is particularly unfortunate that the abandonment of any intention to bring an appeal was not advised either to the Panel or to Cato J, both of whom plainly proceeded on the basis that there would be an appeal against Lord Chief Justice Scott's order. Had they appreciated the true position we think it likely that their decisions would have been different.

[16] We say this because, although they would fully have recognised the awkwardness of the Panel's having to decide whether the Lord Chief Justice had erred in law in the approach that he took to the respective roles of Judge and Jury in a civil proceeding (with the potential for witnesses, including Lord Chief Justice Scott himself, expressing differing opinions on that legal question), they would also have realised that there was little prospect of having the issue authoritatively determined by this Court, at least in the context of this litigation. Mention was made to us of the opinion expressed by the Lord Chief Justice on the same question at the hearing which led to the "agreement" but there does not appear to have been any appealable ruling on that occasion.

[17] It is possible for Mr Cauchi to apply ahead of the prospective re-trial for a direction on how matters should be approached at that trial. But that is unlikely to give the Panel authoritative guidance since we understand from Mr Kefu that the Kingdom of Tonga takes the same position as Mr Cauchion the issue and further, that Cato J has recently conducted a civil jury trial in that way which both counsel say has long been the orthodox approach in Tonga (and elsewhere in the common law world). That approach is that the Judge instructs the jury on the law and that the jury then decides all the issues in accordance with the law as explained to them by the Judge. The likelihood is therefore that any direction given by the Supreme Court upon such an application would result in a ruling favourable to Mr Cauchi and so the matter would not come to this Court. It is perhaps unfortunate that no mechanism exists in Tongan law enabling a proceeding to be moved directly into the Court of Appeal in such a case.

[18] The other matters of complaint by Mr Cauchi allege partiality (actual bias) on the part of Lord Chief Justice Scott. The investigation into those allegations would appear to involve factual questions only. A re-trial of the case in the Supreme Court will be before a different Judge. A hearing by the Panel will carry no risk of an interference with the case in the Supreme Court.

[19] We are conscious of the fact that this present appeal concerns judicial review (the issue is whether the Panel should have treated Mr Cauchi's complaint as premature) and that accordingly we are not concerned with the merits of Mr Cauchi's case before the Panel. Cato J in fact went too far in this respect in para [14] of his decision: see [12] above. His observations had the potential to inappropriately influence the deliberations of the Panel. But it may assist the Panel if we venture to say that our impression is that Mr Niu and Mr Kefu are correct when they both say that the approach described in para [17] above is entirely orthodox and well settled in jurisdictions outside Tonga. It also seems that the matter has been regarded as sufficiently settled in Tonga that it has never previously been brought to this Court. Laws permitting or requiring juries must be observed even if the result is, as a practical matter, undesirable or even unacceptable: see Jenys v Public Curator [1953] HCA 2; (1953) 90 CLR 113 at 118.

[20] The conclusion we have reached is therefore that the Panel was under a misapprehension of the position concerning appeal to this Court and should not have dismissed Mr Cauchi's complaints as prematurely made. (Even if there had been an extant appeal the Panel should simply have deferred its hearing and not dismissed the complaint).

[21] Cato J was similarly in error in refusing leave for judicial review of the Panel's decision. We set aside Cato J's decision, grant leave for judicial review of that decision and direct the Panel to proceed to consider Mr Cauchi's complaints. We also set aside Cato J's costs decision and award Mr Cauchi costs of the judicial review application in the Supreme Court and costs in this Court.

Salmon J

Moore J

Blanchard J