Islamic Co-ordinating Council of Vic Pty Ltd v Chawk and Ors
[2002] VSC 20
•22 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4770 of 2001
| ISLAMIC CO-ORDINATING COUNCIL OF VICTORIA PTY LTD (ACN 097 332 726) formerly known as THE ISLAMIC CO-ORDINATING COUNCIL OF VICTORIA INC. | Plaintiff |
| v | |
| ALI CHAWK and ORS | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2002 | |
DATE OF JUDGMENT: | 22 February 2002 | |
CASE MAY BE CITED AS: | Islamic Co-ordinating Council of Vic Pty Ltd v Chawk and Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 20 | |
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CONTEMPT of court – Civil contempt – alleged disobedience of injunction – charges not established.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Rodbard-Bean | Chakeras |
| For the First Defendant | Mr D. Baker | George Liberogiannis & Associates |
HIS HONOUR:
This is the return of a summons dated 6 February 2002 by which the plaintiff, the Islamic Co-ordinating Council of Victoria Pty. Ltd., formerly an incorporated association by name the Islamic Co-ordinating Council of Victoria Incorporated, seeks that the first defendant Ali Said Chawk be punished for 80 counts of alleged contempt of court in that he disobeyed paragraph 6 of orders made by Beach, J. on 15 March 2001.
Paragraph 6 of those orders, so far as it was relied upon by counsel for the plaintiff before me, reads as follows:
"That the First …Defendant …(is) restrained from:
(a)issuing Halal meat certificates or certifying that meat has been slaughtered in accordance with Islamic religious edicts in the name of:
(i)the Islamic Co-Ordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine and Inspection Service;
(b) certifying Halal food in Australia in the name of:
(i)Islamic Co-Ordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine and Inspection Service;
(c)certifying as Halal any meat, foodstuff or beverage to be exported out of Australia in the name of:
(i)Islamic Co-Ordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine and Inspection Service;
(e)representing (himself) as acting with the authority of the Islamic Co-Ordinating Council of Victoria [registration number A252293J];
until further order."
I defer consideration whether the plaintiff, in light of the summons filed 6 February 2002, was able to rely upon each of those parts of that paragraph.
At the hearing, counsel for the plaintiff did not pursue his client's case founded upon exhibits 1-6, 8-65 and 73-80 to the affidavit of Ibrahim Mohammed sworn 6 February 2002. That left eight instances of alleged contempt, said to be disclosed by eight certificates headed "Certificate for Meat Slaughter by Muslims".
Mr. Mohammed's affidavit, at paragraphs 98-108, sets out the procedure for certification of Halal slaughtered meat. Paragraphs 98-100 show the role of Commonwealth Department of Agriculture, Fisheries and Forestry; and, importantly, of the Australian Quarantine and Inspection Service. The contents of those paragraphs were not disputed. Indeed, I understood Mr. Baker of counsel, for the first defendant, to concede that they accurately set out the applicable regime. Be that as may, I accept them, and they enable the plaintiff to make out its case that certification was in the name of the plaintiff "under the authority or purported authority of the Australian Quarantine and Inspection Service".[1] I reject Mr. Baker's submission that this element of breach of the orders of Beach, J. was not proved.
[1]See paragraphs 6(a)(i), 6(b)(i) and 6(c)(i) of the orders made by Beach, J. on 15 March 2001.
The paragraphs of Mr. Mohammed's affidavit to which I referred a few moments ago establish that after meat is slaughtered in accordance with Islamic religious requirements an interim Halal certificate is prepared. Then the abattoir, by reference to the interim certificate, prepares a final document for certification by a certifying Islamic organisation and by the Commonwealth Department. The document is sent first to the organisation for completion and sealing. The organisation retains the interim certificate and one of the four copies of the final document. The other three parts of the final document are returned to the abattoir, and sent on by it to the Commonwealth Department for sealing. The Department keeps one part, and returns two parts to the abattoir. Presumably, the parts returned by the Department to the abattoir, or at least one of them, are used when it is necessary to prove to a buyer's satisfaction that meat is Halal.
I referred a moment ago to completion and sealing of the final document by the certifying Islamic organisation. The copy certificates exhibited to Mr. Mohammed's affidavit have a box at their top. It is marked "Name of Islamic Organisation". Below that box is a smaller box, marked "Signature of Representative." If such a certificate was forwarded to the certifying organisation with those boxes left completely blank then completion and sealing would require insertion by the organisation of its name, signature by its representative, and application of its seal.
The first defendant gave evidence, both by his affidavit sworn 18 February 2002 and viva voce. Pertinently for present purposes he swore that in the case of the eight certificates ultimately relied upon by the plaintiff the abattoir completed the box headed "Name of Islamic Organisation." Counsel for the plaintiff challenged the evidence of completion by the abattoir in the case of one only of the certificates. I accept Mr. Chawk's evidence.
The documents relied upon by the plaintiff were in seven cases the copy retained by the certifying organisation, and in one case a photostat of a document possibly returned to P & R Meats. Subject to that instance, the parts returned to the abattoir, which conveyed certification to the abattoir, the Commonwealth Department, and probably the buyer, did not go into evidence.
Six of the seven copy documents relied upon by the plaintiff were signed by the plaintiff. His signature appears as in a carbon copy. One of the seven copy documents (ex. IB 67) was not signed by him. The photostat copy was signed.
Six of the seven copy documents relied upon by the plaintiff bear a seal the English language portion of which says "Islamic Co-ordinating Committee of Victoria". Forming part of the seal, but below the circular part thereof, are the words "Ali Chawk". The seal is in each instance affixed in the box marked "Name of Islamic Organisation". In each case the seal is apparently an original, and impressed over the words, written by the abattoir, "Islamic Co-ordinating Council of Victoria".[2] The photostat document is, so far as can be seen, in like form.
[2]The first defendant perhaps gave evidence, it is not very clear, that he may have signed one of the certificates at a time when those words had not yet been written in by the abattoir. Seeing that the certificate was the copy retained by the certifying organisation, and that the words and his signature appeared as carbon copies, I exclude the possibility that the words were added after he had signed the copies that were returned to the abattoir. I conclude that this was the sequence of events in the case of each of the 8 certificates relied upon by the plaintiff.
The first defendant gave certain evidence pertaining to sealing and signing the documents which were returned to the abattoir. It was not confined to the eight cases ultimately relied upon by the plaintiff, but it extended to those cases. By paragraph 7 of his affidavit sworn 18 February 2002 Mr. Chawk deposed as follows:
"The copy certificates exhibited to Ibrahim Mohamed's affidavit are not necessarily copies of the final certificate completed by me for the Committee; they are copies of the copies retained by the Committee and it is possible that the copies provided to the abattoir do, in fact, all contain the seal of the Committee. I believe that is probably the case because I do not recall completing any certificate without both signing the documents and affixing the seal of the Committee."
It seems to be the case that whereas a signature impressed on the top copy of the 4 part certificate showed through onto each of the remaining copies, the seal when affixed did not do so; or at least that the first defendant chose to seal each copy individually. Having regard to those circumstances, and to the 8 documents relied upon by the plaintiff, I conclude that it is probable that the 3 copies of each document which were returned to the relevant abattoir were sealed in the manner that I have described; but that the first defendant did not sign the copies of exhibit "IB 67" which were so returned.[3]
[3]Notwithstanding his counsel’s admission to the contrary: T.26.
I have referred to the seal which the first defendant affixed. There was evidence before me that an unincorporated association of that name was established in 1990, and that the first defendant certified meat as Halal on the Committee's behalf from that time. There was further evidence that the Committee became registered as an incorporated association in 1995; and that in mid –1998 it changed its name to the Islamic Co-Ordinating Council of Australia. There was evidence, again, that the body which began its activities in 1990 has at all times been recognised by the Australian Quarantine and Inspection Service as an Islamic organisation entitled to certify meat as Halal. [4] Counsel for the plaintiff did not contend that there was evidence in the present application that the body had no such status at any pertinent time. There is no reason not to accept the first defendant's evidence on the matter.
[4]Firs Defendant's affidavit sworn 18 February 2002, paragraph 8.
In the event, I find on the standard which is necessary that in the case of each of the 8 documents relied upon by the plaintiff the 4 part certificate was sent to the first defendant (or the body which he represents) with the name of the certifying organisation already written in; that in each case the first defendant sealed all of the copies that were returned to the abattoir with the seal which I have described; and that in all but one case he also signed the copy documents which he returned. I conclude that the first defendant had no reason not to identify the certifying organisation as the body which had formerly been called the Islamic Co-Ordinating Committee of Victoria because he knew – at least in general terms – of the impact of the orders made by Beach J on 15 March 2001. He had reason, conversely, not to certify any document in the name of the plaintiff.
The first defendant could have lined out the reference to the plaintiff in the documents completed by the abattoirs. He did not do so. It is really his failure to do so which gives rise to the situation in which the plaintiff alleges that he has committed contempts of the orders of Beach J.
In some circumstances what would otherwise be treated as a civil contempt becomes a criminal contempt.[5] In the present case, counsel for the plaintiff did not press argument, as the matter developed, that the defendant had contumaciously disobeyed the order of Beach J. On the evidence, that was a correct approach. The matter, then, is to be dealt with as a case of an alleged civil contempt. Even so, the plaintiff must prove its case on the criminal standard of proof. It must establish that:
(1) An order was made by a court;
(2) The terms of the order were clear, unambiguous and capable of compliance;
(3) The order was served on the alleged contemnor;
(4) The alleged contemnor had knowledge of the terms of the order;
(5) The alleged contemnor breached the terms of the order. [6]
[5]See Witham v Holloway (1995) 69 ALJR 847 at 849 per Brennan, Deane, Toohey and Gaudron JJ, and at 854 per McHugh J.
[6]This is the formulation of Gillard J in National Australia bank Ltd v Juric [2001] VSC 375, paragraph 37. Compare Borrie & Lowe's Law of Contempt, 3rd Edition, p.560.
In the present case the plaintiff has proved each of the first 4 matters to the required standard. There was a dispute on the evidence whether the first defendant was in court when Beach J pronounced orders on 15 March 2001. But there was unchallenged evidence that he was served with a copy of the orders.[7] The first defendant's viva voce evidence made it clear that he understood the burden of the obligation cast upon him. His affidavit sworn in this application gives further support to that conclusion.
[7]See paragraphs 5 and 6 of Mr Mohamed's affidavit sworn 6 February 2002.
The key question, then, is whether the plaintiff has proved that the first defendant breached terms of the orders – specifically, as alleged by its summons. That is a factual question. The answer to the question does not depend upon there being proof of intention to breach the orders, although if breach is established it can be relevant that the breach was a casual, accidental or unintentional act of disobedience.[8]
[8]See Borrie & Lowe, supra, at p. 568.
It is necessary to focus upon the terms in which the contempts were specified. That is what the plaintiff set itself to establish.[9] Each of the eight charges which were eventually pursued was in this form:
"That the First Defendant be committed for contempt of court in that on or about … he did wilfully breach paragraph 6 of the orders of Justice Beach made 15 March 2001 by issuing Halal meat certificate number … in the name of the Islamic Co-ordinating Council of Victoria."
(Emphasis added.)
[9]At common law, it has been said, 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: Coward v Stapleton (1953) 90 CLR 573 at 579-580. The situation is different where the charge is of a particular statutory offence: MacGroarty v Clauson (1989) 167 CLR 251. These charges were brought under the common law; but rule 75.06(4) of Chapter 1 requires the initiating summons to “specify the contempt with which the respondent is charged”. Whether or not that would oblige an applicant to formulate charges as the plaintiff did here, once the charges were so formulated they set the framework for what the plaintiff had to establish and what the first defendant had to meet: Australian Building Construction Employees’ and Builders Labours’ Federation and Ors v The Minister of State for Industrial Relations and Ors (1982) 43 ALR 189 at 208-209 and 211-212; see also, in the context of the English Rules of Court, Attorney-General v Leveller Magazine Ltd and Ors [1979] AC 440 at 460 and 461.
I mentioned earlier that the plaintiff's counsel, at the hearing, sought to rely upon breach of paragraph 6(a)(i), (b)(i), (c)(i) and (e) of the orders made by Beach J. The charges, however, relevantly paraphrased only one of the two situations comprehended by paragraph 6(a)(i) of those orders. That is so regardless whether the certificates might have been relied upon to establish breach of some other aspect of the orders. In my opinion the plaintiff's case should be considered simply by reference to alleged breaches of paragraph 6(a)(i); although I think it would make no difference to the outcome were I to consider other aspects of the obligations imposed on the first defendant by the orders.
Next note that the plaintiff by its charges alleged that the first defendant “wilfully” breached the orders of Beach J. Just what the plaintiff proposed to establish by use of the word “wilfully” is not entirely clear. Probably the intention was to differentiate the situation from one in which the alleged breaches were merely casual, accidental, unintentional; and not in any way contumacious.[10]
[10]See Borrie and Lowe, supra, at 568. It is possible that a breach may be wilful yet not contumacious, as to which see Witham at 856 per McHugh J.
At the hearing, as I said earlier, counsel for the plaintiff did not submit that the first defendant's conduct was contumacious, as would cause any breaches to be treated as criminal contempts. But he did not expressly concede that the alleged breaches were merely casual or accidental, not being intentional or reckless. So I think that his submissions were not at odds with the allegation in the charges that the breaches were wilful.
Having regard to my analysis of the content of the charges, I am well satisfied that the plaintiff has not made out any instance of breach as alleged. I am satisfied that if there was any breach it was not wilful, still less contumacious; but was rather casual, accidental and unintentional. All that the first defendant did, in the case of documents sent to his office by the abattoir, was to affix the Committee seal to the copy documents which were returned to the sender; and (in all cases but one) sign the documents as the authorised representative of the relevant organisation. The documents having been already completed so as to refer [11] to the plaintiff, impressing the seal of the Committee over the documents thus completed was apt, and I consider intended, to correct any misapprehension.
[11]subject to one consideration, see paragraphs 27-29.
It is true that the first defendant could have lined out the reference to the plaintiff in each of the documents. But what the first defendant did may be regarded as being another way of handling the situation and achieving the same outcome. At the least I do not conclude that the first defendant's conduct was designed to pay lip service to the orders of Beach J whilst in substance disobeying them. There is the fact that the seal of the entity by its name only up to 1998 was used; and that this name bore great similarity with the name of the plaintiff[12]. It might be argued that the use of the old seal was intended by the first defendant to aid a breach in substance of the orders of Beach J, whilst providing him with a possible answer to a proceeding such as this. But I would not draw such an inference.[13] The question why the old seal was used was not squarely addressed by counsel for the plaintiff in his examination of the first defendant. Moreover, the first defendant, for reasons explained, seems to have had nothing to gain - and he had much to lose – by issuing certificates in the name of the plaintiff.
[12]Which of the Committee and the plaintiff came into existence first is a question which may well arise for consideration in the trial of the main proceeding.
[13]I note in passing that the Committee seal was affixed by the plaintiff to the many certificates in which the abattoir filled in the name of the participating organisation simply by use of the initials “ICCV”, initials apt to describe both the plaintiff and the Committee.
Let it be supposed, contrary to the approach which I consider is required, that it was open to the plaintiff to prove casual, accidental or unintentional breach. Even then, bearing in mind what I consider to be, at best for the plaintiff, the ambiguous nature of the documents as completed and returned by the first defendant to the abattoir, I would not be prepared to find breach proved to the criminal standard. But if I was in error in so concluding, I would in the circumstances decline to make findings of contempt. In that connection I refer to Re Perkins; Mesto v Galpin & Ors[14].
[14][1998] 4 VR 505 at 514; and see also Juric, supra, at paragraphs 152-154, and Talevski v The County Court of Victoria and Ors [2001] VSC 171 at paragraph 60.
There is another matter. I mention it only for sake of completeness.
The summons was brought by a corporation, that is, Islamic Co-ordinating Council of Victoria Pty Ltd (ACN 097 332 726). It appears, from what plaintiff's counsel told me, that the plaintiff was incorporated after the judgment of Harper J upon an application brought by the first defendant against the incorporated association which commenced the substantive proceedings.[15] Judgment was delivered on 28 May 2001.
[15]Islamic Co-Ordinating Council of Victoria Incorporated & Ors v Ali Chawk & Ors[2001] VSC 178. The impetus for incorporation is discernible when reference is had to paragraphs 12-17 of his Honour's reasons.
I do not know, by admissible material, exactly when the plaintiff assumed its present status. I do know, on the other hand, that the orders made by Beach J enjoined the first defendant against conduct in the name of the previous incorporated association. I know also that of the eight charges pursued against the first defendant seven were allegedly committed in August 2001. By that time, it may be, the plaintiff no longer existed as an incorporated association. The documents completed by the abattoir in the eight cases did not specifically identify either an incorporated association or a corporation. Could the first defendant breach an order not to issue certificates in the name of a plaintiff entity which no longer existed at the time of certification? Could it be concluded that he breached such an order when the identity of the certifying organisation – as incorporated association or as corporation – was not stated in the documents completed by the abattoir? These issues, which depending upon the facts could have been of some importance, were not debated. I express no opinion upon them.
The plaintiff's summons must be dismissed.
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