IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE SUPREME COURT
NUKU’ALOFA REGISTRY

APPEAL NO. CA. 11/2001

BETWEEN:

GAVIN PEACOCK
Appellant

AND:

SIONE TUALAU HALA’API’API
Respondent

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Mr Laki Niu for the appellant
Miss Lesina Tonga for respondent

Date of hearing: 22 July 2002
Date of judgment: 23 July 2002

JUDGMENT OF THE COURT

INTRODUCTION

[1]	This is an appeal against a finding of contempt of Court by the Supreme Court (Ward CJ) and against an order that the appellant be fined $2,000 for the contempt or, in default, be imprisoned for six weeks. At the same time, his Honour refused to commit another party. No appeal is brought from that refusal.

[2]	In order to understand the issues which arise on the appeal, it will be necessary first to explain the earlier history of the matter relevantly, as follows:

•	By his writ of summons dated 9 October 2001 and his statement of claim dated 4 October 2001 filed in the Supreme Court, the respondent (as plaintiff) sued several defendants, including the appellant, claiming, inter alia, an order for possession of a flat deck semi-trailer [“the trailer”].

•	After the institution of this proceeding, the respondent, claiming to be the owner of the trailer, filed an application for interim relief, including an application for an order that the defendants deliver the trailer to the plaintiff immediately.

•	By notice dated 15 October 2001, the Registrar of the Supreme Court gave the appellant notice that the case had been set down for directions before Ward CJ on 24 October 2001.

•	By a notice of opposition dated 24 October 2001, Mr. Tu’utafaiva, counsel for the appellant, notified the plaintiff of the appellant’s intention to oppose the respondent’s interim application on several grounds, referring in this connection to, inter alia, an affidavit sworn by the appellant.

•	On 24 October 2001, Ward CJ stood the respondent’s application over to 25 October 2001 for hearing.

•	On 25 October 2001, having heard counsel for the parties, Ward CJ ordered, inter alia, that the appellant return the trailer to the respondent by midday on 26 October 2001. Liberty was reserved to the parties to apply on three days’ notice to vary or cancel the Order.

•	The Order, as formally drawn up and signed by Ward CJ, bore the following endorsement:

“And take notice that failure to comply with this Order may result in the (appellant) being arrested or imprisoned for contempt.”

•	By a notice filed on 26 October 2001 to vary or discharge the Order made on 25 October 2001, Mr. Tu’utafaiva, as counsel for the appellant, made reference to the contents of affidavits sworn by the appellant and by Sione Filipe respectively, as the grounds for the appellant’s application. In his affidavit, the appellant stated that he had prepared [and then annexed] an income statement in respect of the trailer’s operations in the 2000 squash season. Sione Filipe’s affidavit described a transaction in which he had bought the trailer from the plaintiff in 1992.

THE MOTION FOR COMMITTAL FOR CONTEMPT

[3]	By an application for committal filed on 14 November 2001, the respondent gave notice of a motion for an order that the appellant be committed for contempt for breach of the order made on 25 October 2001. In his affidavit sworn 14 November 2001 in support of his motion, the respondent, amongst other things, referred to his understanding of several discussions between counsel for the parties about the return of the trailer. As will appear, this was a contentious area, and we will return to some of the detail of this affidavit later.

[4]	On 16 November 2001, the Registrar of the Supreme Court issued a summons in the motion for committal for contempt. The summons was addressed to the appellant, summoning him before Ward CJ to show cause why he should not be committed for contempt.

THE HEARING OF THE CONTEMPT APPLICATION

[5]	The transcript of this hearing, on 21 November 2001, indicates that the course of the proceeding was as follows:-

•	Ms Tonga announced her appearance for the respondent, and Mr. Tu’utafaiva for the appellant.

•	Mr. Tu’utafaiva informed the Court that the appellant had not understood Mr. Tu’utafaiva properly when Mr. Tu’utafaiva had explained the effect of the order to the appellant; that the trailer had not been used; and that because it had no tyres, it could not be taken away.

•	His Honour then referred to earlier affidavit evidence of the respondent that on 11 June (2001) he had found the lock on his gate had been cut, the gate left open and the trailer taken; and that he had been told that a “palangi” and four others had come to the house and taken the trailer.

•	Mr. Tu’utafaiva said that, although the trailer had tyres then, the appellant had taken them off and used them on other vehicles used by the appellant.

•	His Honour said to Mr. Tu’utafaiva: 

“I need to know (why the tyres cannot be put back). You are welcome to call your client, I don’t hold to the fact that he is not entitled to speak to the court. But I need to know simply why it was (not) returned in accordance with that Court Order. If there had been any impossibility about it, then it simply needed an application to court to explain that. But nothing happened since the order made on the 25th told him to return it by midday 26th and we are now nearly a month later and nothing [has] happened.”

•	Mr. Tu’utafaiva then, having sought instructions, called the appellant, who gave this evidence:

“I never had an understanding that there was an order to return the trailer. I spoke to my lawyer when he came out of the chamber and he first told me that the Chief Justice was very angry why I hadn’t filed a financial return for the trailer. I advised [Mr. Tu’utafaiva] that I had already done a financial return, put it to his office and I was told by his office it would be filed. And I said that if I can get another copy from my computer and give to him and that was our conversation. I left, there was no instruction to me to return the trailer. I have nothing against returning the trailer now that I know that it has to be returned. I can do it as quickly as possible.”

•	His Honour then showed the appellant the formal order dated 25 October 2001. The appellant said that he had never seen it. He went on, in answer to a further question by the Judge, to say that he had “never had any knowledge of (any) Court hearing”; and that the accounts he had filed on 26 October 2001 related to another case.

•	His Honour, indicating that, in his view, there had been a waiver of professional privilege, next asked Mr. Tu’utafaiva his recollection of his discussions with the appellant. Mr. Tu’utafaiva said:

“[I]n this particular case sir, it is my recollection that I have not shown him this document. … [M]y recollection of what happened after chambers when (the appellant) was present, he was outside and my recollection of our conversation outside was that the trailer has to be returned and there has been court concern because in the previous case there was an order for an account to be filed but nothing is been done. And it was on that basis, (the appellant) asked what’s to be done and I said well we have to apply for a variation of that order because of the court’s concern that we have no other proof of ownership whereas (the plaintiff) has a document in the file to show that he is the owner of this trailer. And that when I said to him that if Mr. Filipe is back in the country, then go and see him, if you can get an affidavit from him. (The appellant) went and came with the two (affidavits) I suggested to him the title, the form to be used in the application and he came back with the documents. I was in court on that day and I signed it without really reading the heading of that notice joint application for variation or discharge of the order but it came as ‘Notice to vary or discharge’ that’s how it happened sir. So I was under the impression that (the appellant) had understood what I told him about the return of the trailer.”

•	In response to questions from his Honour, the appellant then said that he had in fact taken the trailer from the plaintiff’s place in June. 

•	Ms Tonga then informed the Court that, after the application to vary the order was filed, Mr. Tu’utafaiva informed her that the Registrar had spoken to him about the form of the application; and that Mr. Tu’utafaiva had informed the Registrar that it should be cancelled. His Honour said this had been done on his advice.

•	The transcript next records the following exchange:

“Ct:	Well, what do you say about that Mr. Peacock? Here we have a situation that I make a Court order, your counsel recalls mentioning it to you. You say that you fail to understand that and yet from then onwards for the next month effectively there is communication between the lawyers who seem to be proceeding on the basis that you knew perfectly well you meant to return that trailer. 

W:	I knew it’s no communication between lawyers Your Honour. It was very brief outside the chambers because Mr. Tu’utafaiva was going somewhere else and I know I was not told to return the trailer. 

Ct:	And you had no further communication from him about this matter.

W:	Concerning the trailer, no. 

Ct:	Yes, anything else you want to say.

Counsel:	No, Sir. 

Ct:	I’m sorry. Mr. Peacock. Anything else you want to say?

W:	No, Your Honour. 

Ct:	Alright, sit down.”

THE PRIMARY JUDGE’S REASONS

[6]	In his reasons for judgment, his Honour said:

“[A]n injunction was made on the 25th and that injunction required the trailer to be returned by midday on the 26th of October. It has never been returned. … (The appellant) gives evidence on oath that he never, at any stage, knew that there was an order for this trailer to be returned. His counsel tells the court that he explained the position and he assumed or thought that Mr. Peacock understood. Mr. Peacock said he never understood. I don’t think this court can, in the view of a clear breach of it’s order decide between those differences. I think in the circumstances, however, I cannot imprison for contempt but I think the proper order in this case is that there should be a fine of $2,000.00 against Mr. Peacock. It was a blatant disregard of that order, where the fault truly lies is hard to say. He will pay that fine within 7 days or be committed to prison for 6 weeks.”

THE GROUNDS OF THE APPEAL

[7]	Mr Niu, who now appears for the appellant, relies on the following grounds of appeal:

1.	No proper or sufficient notice of the charge was given.

2.	The appellant’s counsel’s duty and interest were in conflict.

3.	The elements of the charge were not proved.

4.	In any event, the fine was wrongly imposed, and excessive.

CONCLUSIONS ON THE APPEAL

[8]	It will be convenient to consider Mr. Niu’s arguments in their order.

Notice

[9]	Mr. Niu submits that the appellant should have been given sufficient information of the grounds of the charge, and a reasonable time to prepare his defence. In this connection, Mr. Niu relies upon the provisions of O.26 r12(3). They are first, that leave of the Court be sought by ex parte application, supported by an affidavit confirming the order breached, identifying the person to be committed for contempt, and stating the grounds upon which committal is sought ((3)(i)); and secondly, that if the Court grants leave to apply, a summons shall be issued, which the applicant shall serve upon the person sought to be committed, together with a copy of the affidavit, not later than 7 clear days before the hearing date ((3)(ii)). Mr. Niu says that the latter requirement was not observed, because the summons was served less than 24 hours prior to the hearing, and was not accompanied by the affidavit.

[10]	We agree with Mr. Niu that the appellant was entitled to know of the charge, and also to have an adequate opportunity to defend it.

[11]	In Coward v Stapleton [1953] 90 CLR 573, Williams ACJ, Kitto and Taylor JJ said [at 579-580]:

“(I)t is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Polland; R v. Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.”

[12]	Clearly, the object of the provisions of O26 r12(3) is to provide a framework which gives effect to these accepted notions of elementary justice. However, since in this context, the Court is bound, in order to do justice, to take into account the specific circumstances of each individual case, O26 r 12(3)(iii) confers upon the Court the power to dispense with service of the summons “if it thinks it just to do so.”

[13]	The Court has, of course, a general power to dispense with compliance with any of its Rules in the interests of doing justice. Moreover, procedural irregularities may be waived by a party. 

[14]	Thus Halsbury’s Laws of England, 4th Ed. Vol.9, citing several decided cases on civil contempt, states [at 58]:

“Irregularities in the form or service of the notice of motion or accompanying affidavit may be waived. … The Court may also dispense with service and make an ex parte order for committal where the need for relief is especially urgent or where the contempt is serious provided the person against whom committal is sought is shown to have knowledge of the Court proceedings.” 

[15]	The question for us here is whether, notwithstanding the general principles we have cited, it was nonetheless just to disregard the fact that the respondent’s affidavit had not been served upon the appellant.
 
[16]	Central to this question is an understanding of the contents of that affidavit, to which only brief reference has been made thus far.

[17]	In this affidavit sworn on 14 November 2001, the respondent had said:

“4.	That on the 1st November 2001, I spoke to my counsel, Lesina Tonga about the trailer not yet returned by the defendants. I was told by my counsel that she spoke with counsel for defendants that same morning and counsel for defendants was surprised that the defendants particularly Mr. Gavin Peacock had not returned the trailer for Mr Peacock was clearly advised to return the trailer as ordered by the Court. 

5.	That on the 5th November 2001, I was contacted by my counsel to see her regarding documents received from the defendants’ counsel to vary the Court Order and which was supported with affidavits of Gavin Peacock and Sione Filipe. 

6.	That I have been told by my counsel that counsel for the defendants had advised her that he already told the Registrar of the Supreme Court to cancel the document filed on behalf of the defendants titled ‘Notice to vary or discharge the Court Order of 25.10.01 upon the following grounds’. This is the document that I am referring to in the preceding paragraph.”

[18]	The affidavit went on, in some detail, to dispute Mr. Filipe’s version of the 1992 transaction but, for present purposes, it is not necessary to pursue this aspect of the matter.

[19]	In our opinion, having regard to the subsequent course of events, the appellant suffered no real prejudice by the respondent’s failure to serve his affidavit upon the appellant before the committal hearing. The appellant’s counsel, Mr. Tu’utafaiva, must have been well aware of the course of events deposed to in par 4,5 and 6 of the affidavit. In any event, the conduct of the appellant’s counsel at the committal hearing clearly amounted to a waiver of any procedural defect in this regard. It will be recalled that this defect was not raised by Mr. Tu’utafaiva. On the contrary, at the outset, Mr. Tu’utafaiva sought to explain to the Court why the trailer had not been returned.

[20]	This ground of appeal is rejected.

The position of counsel for the appellant at the committal hearing

[21]	On behalf of the appellant, Mr. Niu submits that the position of Mr. Tu’utafaiva was so compromised that, in truth, the appellant was virtually unrepresented.

[22]	In our opinion, even if this were an accurate description of the situation, it is not, of itself, a ground of appeal, but rather a matter to be taken into account in considering the third ground of appeal, that there was a failure to prove the charge.

[23]	However, we should say at this stage that the transcript of the proceedings at the hearing on 21 November 2001 indicates that the appellant was given, through Mr. Tu’utafaiva and the appellant’s own evidence, an adequate opportunity to defend the charge, and to give an explanation of any exculpatory or mitigating circumstances. The appellant was then able to explain his problem with the tyres and to give evidence that he was unaware of the order made on 25 October 2001.

Proof of the charge

[24]	Mr. Niu submits that the evidence failed to establish two essential ingredients of the charge: First, that the appellant knew of the injunction; and secondly, that the appellant knowingly disregarded it.

[25]	In our view, there is force in the submission.

[26]	In a proceeding for civil contempt, as Halsbury’s Laws of England 4th Ed. Vol.9 states [at 59]:

“Contempt of court must be proved beyond reasonable doubt.”

And, as Halsbury also states [at 34]: 

“53. Unintentional disobedience. Although contempt may be committed in the absence of wilful disobedience on the part of the contemnor, committal or sequestration will not be ordered unless the contempt involves a degree of fault or misconduct. Thus accidental and unintentional disobedience is not sufficient to justify sequestration or committal, but the respondent may be ordered to pay the costs of the application.”

[27]	Moreover, as Halsbury further states [at 37]:

“61. Necessity of personal service. As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. In the case of an order requiring a person to do an act the copy must be so served before the expiration of the time within which he was required to do the act.”

[28]	Halsbury goes on to say [at 38]:

“63. Time for service. An order requiring an act to be done within a particular time must be served personally on the person required to do the act within that time. …

“64. Method of service. The copy of the order, duly indorsed, must be served personally on the person required to do or refrain from doing a specified act. Personal service involves leaving a copy of the document and showing the person served (if he so request) the original or an office copy as prescribed. … ”

[29]	An order for substituted service may be obtained, ex parte, [Halsbury at 38]. But, this was not sought by the respondent here. 

[30]	Further, special circumstances may justify the Court exercising its dispensing power in this connection where, for instance (a) the respondent was present when judgment was published and orders made; (b) it was apparent that the respondent had received copies of the judgment and orders; and (c) the respondent had been informed on numerous occasions by officers of a statutory authority and police that if he disobeyed the orders of the court he would be gaoled (Director of National Parks and Wildlife v Remme (1992) 76 LGRA 1 (NSW Land & Environment Ct, Stein J).

[31]	At the same time, in this area, dispensation ought to be exercised sparingly, and only where there are special circumstances justifying non-compliance with the requirements for service (Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655 (NSW Sup Ct, Holland J).

[32]	It is true, as we have noted, that on 26 October 2001 Mr. Tu’utafaiva filed the application to vary or cancel the order made on 25 October 2001; and that this application was supported by an affidavit sworn by the appellant. If this stood alone, it may well have been proper to infer that the appellant was then aware of the making of the order of 25 October 2001. But, as we have seen, it did not stand alone. At the commencement of the hearing on 21 November 2001, Mr. Tu’utafaiva accepted that he may not have clearly explained the effect of the order to the appellant; and, in his evidence, the appellant unequivocally denied any knowledge of the order, and he was not shaken on this.

[33] 	It is also true, as mentioned, that his Honour spoke of a “blatant disregard” of the order. Again, if this stood alone, it might have been consistent with, or even have amounted to, a finding that the appellant was aware of the order. But, as we have seen, when the primary Judge’s reasons are read as a whole, it is clear that his Honour deliberately decided not to make that finding, taking the approach that, as a matter of law, he need not attempt to reconcile the difference between the version of events given by Mr. Tu’utafaiva on the one hand, and the appellant on the other. 

[34] 	In our opinion, as a matter of legal principle, in order to make a finding of deliberate disobedience of the order, the Court had to find, beyond any reasonable doubt, that the appellant was aware of the order at the light of the appellant’s testimony, unable to make that finding, it must follow, in our view, that a finding of contempt was not open as a matter of law.

FRESH EVIDENCE APPLICATION

[35]	For completeness, it should be noted that the respondent applied to adduce fresh evidence on the appeal in the form of a further affidavit sworn by the respondent. However, in our view, the contents of the affidavit do not bear, in any relevant sense, upon the critical question of the state of the appellant’s knowledge of the making of the order of 25 October 2001 at any material time. We reject this application.

COSTS

[36]	Ward CJ made no order for the costs of the proceedings before him. The appellant now seeks an order for the costs of the appeal.

[37]	In our view, there should be no order for any costs, either at first instance and or on the appeal. For one thing, although the appeal has succeeded on one ground, it has failed on another. Moreover, the confusion on the appellant’s side of the record could have induced the respondent’s advisers to believe that, at all material times, the appellant was aware of the making of the order of 25 October 2001.

DISPOSITION OF THE APPEAL

[39]	Accordingly, we make the following orders:

1.	Appeal allowed.

2.	Set aside the orders made at first instance on 21 November 2001 on the proceedings for committal for contempt. In lieu thereof, order that those proceedings be dismissed.

3.	Make no order for the costs of the appeal.

Burchett J
Tompkins J
Beaumont J