Narai v Foto [2006] VUSC 77; CC 175 2004 (17 October 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No.175 of 2004

BETWEEN:

SAMUEL NARAI
First Claimant

AND:

CHARLES NIMPOW
Second Claimant

AND:

JAMES FOTO
First Defendant

AND:

JACK UMOU
Second Defendant

AND:

KENNETH UMOU
Third Defendant

Mr. Nalyal for Claimants and Simo Narum
Mr. Kilu for Defendants
Mr. Timakata for Albert Naupa and others
Mr. Rosewarne for Jonathan Naupa & Tropical Rainforests Aromatic Ltd

RULING

Introduction

1. These are applications by Tropical Rainforest Aromatics Ltd (TRA), and Jonathan Naupa, and Simo Narum, to be removed from the Defendant’s application that they, among others, be punished for contempt.
   
2. The contempt alleged against them is that they took part in the breach of a Court order made in this proceeding dated 9 March 2005 which provided:
   

"(1) All parties and their servants, employees and agents are restrained from harvesting or removing any sandalwood from the lands known as Ponive and Punisia until further order of this Court"

3. The present applicants are not parties to this proceeding and thus not parties to the order. But the defendants’ contention is that they were employees or agents of one of the parties, or at least they knowingly aided a breach of the orders.
   

The applicant’s case

4. The applicants claim that there is power for the Court to "remove" them from the contempt application before it is even heard on a basis similar to the Court’s power to strike out a proceeding on the grounds that it discloses no reasonable cause of action. Although there is no specific rule in the Civil Procedure Rules No.49 of 2002, the existence of such a power has been recognised by the Court of Appeal in respect of an entire proceeding: Noel v Champagne Beach Working Committee [2006] VUCA 18; CAC 24 of 2006.
   
5. A contempt application is merely an application within a proceeding for sanctions for breach of an order. It is not a proceeding in its own right. I doubt whether there is any power to strike out an application for contempt either generally or as against one or more defendants before the application is heard. There is no foundation for it in the Rules and it is likely to lead to a proliferation of unproductive preliminary skirmishing which will do little to advance the objectives set out in R.1.2. Nevertheless, for the purposes only of the argument in this case, I will assume that there is such a power.
   
6. Mr. Rosewarne’s argument in support of the application to remove is essentially this: the applicants are not parties to the proceeding and are therefore not bound by the order; therefore any liability of the applicants for taking part in a breach of the order is for criminal contempt not for civil contempt; and that under Vanuatu law, only the Public Prosecutor can prosecute criminal matters, including criminal contempt.
   
7. Mr. Nalyal, for Simo Narum, also submits that the order does not bind his client as he has never been a party to the proceeding, nor is he a servant, employee or agent of any of the parties; and he denies the allegations against him in any event. The last point does not assist as for the purposes of a strike out application, the allegations made must be treated as true.
   

Discussion

8. The starting point is the Rule under which the application for punishment for contempt is made, R.18.14. Sub rule (1) provides that the Rule applies where "a person" fails to comply with an order of the Court or an undertaking given to the Court. If that happens during a proceeding, another "party" may apply for an order that the first "person" be punished for contempt. If the failure happens after the proceeding has ended, another "person" may apply to reopen the proceeding and ask that the person be punished for contempt.
   
9. In my view, it is clear from the careful usage of the words "person" and "party" in the Rule, that the Rule was intended to enable an application for punishment for contempt to be made against any person, not simply a party to the proceeding bound by the order. In that regard, the Rule does not depart from the general common law position out-lined in the passage cited by Mr. Rosewarne from the speech of Lord Oliver in Attorney General v Times Newspapers Ltd [1991] 2 All E.R. 398 at 414 - 415. Not only parties to the proceeding may be liable for contempt for breach of it, but also non-parties, so-called strangers to the litigation, if they have knowingly aided and abetted the breach; Seaward v Paterson [1897] UKLawRpCh 22; [1897] 1 Ch 545.
   
10. It is true that the non-party’s liability is for criminal contempt and arises not because he himself is bound by the order but because his act constitutes a wilful interference with the administration of justice by the Court. But it does not follow that because that type of contempt is historically called "criminal contempt" as opposed to "civil contempt", only the Public Prosecutor can initiate an application for punishment.
    
11. First, R.18.14 (2) specifically allows either the Court itself or another party to initiate an application. That again is entirely in keeping with the common law position. There are numerous cases from all common law jurisdictions where a party to the proceeding has initiated proceedings for criminal contempt, whether the contempt is called criminal because it is alleged to have been committed by a non-party or for other reasons. Seaward v Paterson (supra) is an off-cited example from the United Kingdom. Malavez v Knox [1977] 1 NZLR 463 is an example from New Zealand. In the High Court of Australia decision cited by Mr. Rosewarne, Witham v Holloway (1995) 183 CLR 525, McHugh J in his analysis of the differences between civil and criminal contempt (at p.540), pointed out that proceedings for criminal contempt can be initiated by the Attorney General, by the Court of its own motion or by any person with an interest in the subject matter of the proceeding.
    
12. There is nothing in Vanuatu law relating to the office of the Public Prosecutor which alters that position. Indeed there is a very good argument that, far from having the sole function of taking proceedings for criminal contempt of the present type (i.e., not amount to any statutory offence), the Public Prosecutor has no role at all in the matter; and that if any action is to be taken by the State, it would have to be by the Attorney-General as in other countries sharing similar legal systems.
    
13. The submission that the prosecution of criminal "matters" (sic) in Vanuatu is reserved for the Public Prosecutor is simply wrong. As authority for the submission Mr. Rosewarne referred to Article 55 of the Constitution which states that "the function of prosecution shall vest in the Public Prosecutor" and s.8 (1) of the Public Prosecutor’s Act No. 7 of 2003 which states that the functions of the Public Prosecutor are:
    

"(a) to institute, prepare and conduct preliminary enquiries; and

(b) to initiate prepare and conduct on behalf of the State prosecutions for offences in any Court"

14. First, the initiation of a proceeding or application for punishment for criminal contempt by way of breach of a Court order made in a civil proceeding is not the prosecution of a criminal offence. While the procedure obviously has some parallels with a criminal prosecution, it is a quite different and peculiar animal. That is obvious from the discussion of its nature by McHugh J in Witham v Holloway.
    
15. In any event, the provisions referred to do not say that no-one else but the Public Prosecutor can initiate a criminal prosecution. What was not cited was s.35 of the Criminal Procedure Code Act [CAP136] (as amended by the Criminal Procedure Code Act No.13 of 1984) which provides for any person to institute a criminal prosecution by making a complaint to a judicial officer. Also not cited were s.30 of the Criminal Procedure Code Act and s.10 of the Public Prosecutors Act both of which specifically give the Public Prosecutor the power (but not the obligation) to take over the conduct of a private prosecution. All those provisions make it quite clear that the institution of prosecutions for criminal offences in Vanuatu is not reserved solely to the Public Prosecutor.
    
16. On the other hand, the Public Prosecutor is not given the function of bringing proceedings for criminal contempt not amounting to a criminal offence. Since the Public Prosecutor is a creature of statute, it would follow that the Public Prosecutor has no power to do so. In those circumstances, the Attorney General would retain that function, although of course that does not preclude one of the parties or the Court initiating the proceeding.
    
17. Accordingly the two applications for removal from the contempt proceedings are dismissed.
    
18. There have also been applications for security for costs filed by TRA and Jonathan Naupa in the event (realised) that their application for removal was unsuccessful. The two claimants have also made the same application. These applications are against the defendants who are seeking punishment for contempt.
    
19. The jurisdiction to order security for costs is given by Rule 15.18. It provides that on application by a defendant, the Court may order the claimant to give security for costs. Here it is the claimants and other persons who are seeking that the defendants give security.
    
20. On behalf of the applicants for security, it was argued that the application for punishment for contempt is in effect a separate proceeding and that the defendants who have brought that application should be treated as claimants for the purposes of R. 15.18.
    
21. However, the application for punishment for contempt is not a separate proceeding. It is in the nature of an enforcement of the order made in the proceeding. There is simply no basis in the rules for different applications within the same proceeding to be treated as separate applications for the purposes of R. 15.18. Acceptance of that approach would also lead to an unhelpful proliferation of subsidiary litigation which would hinder rather than advance the overriding objective of the Civil Procedure Rules.
    
22. The applications for security for costs are also dismissed. The defendants are entitled to costs in respect of all these applications. The issue of costs will be decided at the next conference unless earlier agreed between the parties.
    
23. There will be a further conference at 10am on 8 December 2006.
    

Dated at Port Vila on 17 October 2006

BY THE COURT

C. N. TUOHY
Judge