Kessly v Hasapaki

The appeal concerned a finding of contempt of court made against the appellant, Kessly, by the Land and Environment Court. The contempt arose from Kessly's non-compliance with a previous order directing the grant of an easement to the respondent, Hasapaki. Kessly, who was represented by counsel, was absent from the hearing where the contempt was considered, having had an application for an adjournment based on medical reasons refused by the primary judge.

The Court of Appeal was required to determine whether the refusal of Kessly's adjournment application constituted a denial of procedural fairness, and consequently, whether the finding of contempt was vitiated by this denial. The court also considered the primary judge's approach to the contempt proceedings, noting an indication that practical orders facilitating the easement's execution were preferred over a finding of contempt.

The Court of Appeal allowed the appeal, setting aside the Land and Environment Court's orders relating to the contempt finding. The court reasoned that the refusal of the adjournment application, in the circumstances, had denied Kessly procedural fairness. The court acknowledged the primary judge's preference for practical outcomes but found that this did not override the fundamental requirement of procedural fairness in contempt proceedings.

Consequently, the Court of Appeal set aside the specific orders made in the Land and Environment Court concerning the contempt. The court made orders regarding the costs associated with the transfer of the easement, allowing these to be set off against the payment for the easement. No orders were made as to the costs of the contempt motion in the Land and Environment Court or the costs of the appeal proceedings in the Court of Appeal.