Barfoot v O'Meara
[2019] NZHC 3470
•20 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-686
[2019] NZHC 3470
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of Tamaki Estuary Protection Society Inc.
BETWEEN
CHRISTOPHER BARFOOT, BETHANY MEGAN EVANS, JAMES REGINALD SINCLAIR, JULIE CHAMBERS, CHARLES WORTH, OLIVER HOFFMAN, DORTHE SIGGAARD, SIU MAN, LORA YOUNG, BARBARA SHAW
Plaintiffs/Applicants
AND
PATRICK GORDON O’MEARA
First Respondent
AND
DENNY NGAHAUEWHA THOMPSON
Second Respondent
AND
TAMAKI ESTUARY PROTECTION SOCIETY
Third Respondent
Hearing: 18 and 24 October 2019
Supplementary written submissions: 7, 27 and 30 November 2019
Appearances:
R Pidgeon for Applicants
K M Muller, as counsel assisting the Court
F Pilditch, Court appointed counsel for First and Second Respondents
Judgment:
20 December 2019
JUDGMENT OF WALKER J
This judgment was delivered by me on 20 December 2019 at 1.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
BARFOOT & ORS v O’MEARA & ORS [2019] NZHC 3470 [20 December 2019]
Introduction
[1] By a judgment delivered on 5 September 2019,1 I found Messrs Thompson and O’Meara (the respondents) had committed a civil contempt of court. Their contempt was the wilful disobedience of a Court Order made by Edwards J on 29 May 2019.
[2] Underpinning this proceeding is an acrimonious dispute relating to the governance and “executive committee membership” of the Tamaki Estuary Protection Society Inc (TEPS). The background is set out in my judgment on contempt. The full context is set out in the judgment of Edwards J dated 29 May 2019. In short, the applicants commenced judicial review proceedings alleging that the respondents had not been validly appointed to the executive committee. The respondents vigorously opposed the orders sought.
[3] Edwards J found there had been a “catalogue of deficiencies and irregularities in the procedure leading up to the AGM, and at the AGM itself…”.2 Accordingly, she made orders that Mr O’Meara and Mr Thompson’s purported appointment at the AGM was invalid.
[4] Edwards J also ordered a fresh meeting and elections to be held, chaired by an independent Chair. Ms Anderson QC, who had previously been appointed to that role, confirmed her willingness to again act as Chairperson in a memorandum dated 5 June 2019.
[5] Critically for the purposes of the contempt application, Edwards J found that the respondents had refused to hand over TEPS’s records, including the minute book, bank account details, and membership lists; these remained in the respondents’ possession and control.3 She consequently made orders that this material be handed over by the respondents to Ms Muller, counsel assisting the Court. The order stipulated the date by which this was to happen. It did not, although some limited material was provided to Ms Muller late.
1 Barfoot & Ors v O’Meara [2019] NZHC 2217.
2 Barfoot v O’Meara [2019] NZHC 1186 at [39].
3 At [15] and [42].
[6] The respondents did not attend the hearing of the application for contempt. Nor had they engaged with the Court or the applicants in any meaningful way since Edwards J issued her judgment. The application therefore proceeded by way of formal proof.
[7] In finding the respondents had committed contempt, I was satisfied to the requisite standard that:
(a)There was an order which was unambiguous in its terms and binding on the respondents;
(b)The respondents were aware of the order;
(c)The respondents breached the order; and
(d)Their conduct was deliberate “in the sense that they knew the obligation cast by the order of the Court, but nonetheless intentionally breached that obligation.”4
[8] I was not prepared to determine the question of penalty in the respondents’ absence. In my judgment, I made it clear that they had an opportunity to purge their contempt by either complying with the Order to deliver up all TEPS documents in their possession, power or control; or providing an affidavit explaining where the documents listed at [14] of my judgment currently are, when they were last in their possession and what happened to them.
[9] I issued an arrest order against Mr Thompson and Mr O’Meara but directed that this order should lie in Court until the next hearing date and only be executed if the respondents failed to attend Court on that date.
[10] In view of the seriousness of these issues, I requested the Registrar to appoint Mr Pilditch to represent Mr Thompson and Mr O’Meara at the penalty hearing. I did so because, while the Court had been ably assisted by Ms Muller as counsel assisting
4 Solicitor-General v Krieger [2014] NZHC 172 at [26].
the Court, I understand that Ms Muller had been appointed by the Solicitor-General in view of the overlay of the charitable status of TEPS. I anticipated that the respondents should have their own representation if there was a risk of a custodial response to the contempt finding. I record the Court’s gratitude for Mr Pilditch’s assistance in this regard.
[11] Both respondents appeared at the penalty hearing on 24 October 2019. I therefore revoked the arrest warrant. I permitted Mr Pilditch some time to explain the import of the proceeding to each of them. Mr O’Meara provided a laptop to Ms Muller. It was suggested by the respondents that potentially relevant material belonging to TEPS was stored on the laptop.5
[12] After taking preliminary instructions, Mr Pilditch sought an adjournment to enable the respondents to prepare affidavits to explain themselves and to respond to each of the categories of documents sought under the terms of the Order.
[13] The applicants sought a fresh warrant to have the respondents committed for both coercive and punitive effect. I declined this application. I adjourned the hearing for one week. I set a timetable for the filing of affidavits by Mr Thompson and Mr O’Meara. I also indicated that the respondents would need to make themselves available for cross-examination should the applicants seek to cross-examine them.
[14] Affidavits were duly filed in accordance with the timetabling directions I made and the penalty hearing resumed on 24 October 2019.
Issues
[15] I must now determine the appropriate penalty, informed by developments since I issued my judgment.
5 As it transpired, nothing of substance was found on the laptop.
[16]The issues as I see them are four-fold:
(a)Whether the respondents have purged their contempt by their explanation as to why they do not have the TEPS documents in their possession or under their control.
(b)Whether there is scope in the contempt jurisdiction to restrain the respondents from attending the next AGM of TEPS as a punitive response.
(c)Whether a sentence of community work is an option in lieu of imprisonment or fine.
(d)The key question - what is the appropriate penalty in all the circumstances?
Have the respondents purged their contempt?
[17] Mr Thompson describes himself as an “Iwi Consultant” in his affidavit affirmed on 23 October 2019. He explained his role with TEPS as interim secretary and treasurer from December 2017. He stated that he, together with Mr O’Meara, had delivered the membership list, subscription list and the copies of receipts for members to counsel assisting the Court, Ms Muller, on or about 14 June 2019. He stated that these were the only TEPS documents they had. He explained that all documents belonging to TEPS were kept at the TEPS clubhouse. He listed the documents subject to the Court Order and provided a brief commentary in respect of each. He asserted that he had never seen many of the listed documents. He deposed that the club minute book, along with other documents, were “taken” during a burglary at the clubhouse over the summer period, December 2017–March 2018.
[18] Mr Thompson apologised to the Court for his failure to engage in the process. He explained that he was unable to get legal counsel at short notice. He stated:
Mr Pilditch has informed me of the seriousness of this situation and the possible outcomes. For this, I unreservedly apologise to the Court...
[19] Finally, Mr Thompson explained his own iwi connection to the area of Mokoia/Panmure and the iwi history, the importance of which I acknowledge. He states that he has a responsibility to the whenua, the awa and the rohe, which is why he became a member of TEPS in early or mid-2016.
[20] Mr O’Meara also filed an affidavit in accordance with the timetable. He described himself as an “unemployed local environmental worker”. He was Chairman of TEPS since 2014 and Deputy Chair from 2011–2014.
[21] Mr O’Meara challenged the evidence of service of various Court documents at his home address, explaining that he was not aware of the application to hold him in contempt. He stated that he does not have, and has not had, a working computer during the time of the service of the proceedings by email. He asserts that he did not mean to disrespect the Court.
[22] Mr O’Meara also deposed that the TEPS records were kept at the clubhouse where the meetings took place. He says he did not take documents from the clubhouse because there was no need to do so. He stated that many of the documents listed as subject to the order were never possessed or controlled by him or, alternatively, he no longer possessed or controlled them once the litigation started; and that he delivered all documents within his control on 14 June 2019.
[23] Mr O’Meara explained that the clubroom was burgled on or about 7 February 2018 and documents belonging to TEPS taken during the burglary. He stated:
The building had been ransacked and turned upside-down, with drawers and cupboards emptied and TEPS documents, including items listed by the plaintiffs/applicants, stolen. I then called the Police and made a complaint but nothing has come from that.
[24] Mr O’Meara annexed a Police acknowledgement of the complaint reported on 7 February 2018. Mr O’Meara’s affidavit then moved to various matters relating to his complaints about the TEPS Committee and tensions within the organisation. In my assessment, those matters are not relevant to the issues before me and I put them to one side.
[25] The applicants cross-examined Mr Thompson at the penalty hearing. Mr Thompson’s evidence that many of the documents sought by TEPS had been taken in a burglary was, overall, unsatisfactory. There was also no explanation for the missing documents not included in the stolen material. Mr O’Meara denies ever receiving them but this is at odds with the evidence from previous secretaries of TEPS.
[26] I do not accept the burlgary explanation for two reasons. First, although the issue of documents in the respondents’ possession had been raised on multiple occasions during the substantive proceedings, this is the first occasion on which theft of documentation has been mentioned. To illustrate:
(a)On or about 6 August 2018, Messrs Thompson and O’Meara agreed to consent orders for the appointment of Ms Jane Anderson QC as a neutral Chairperson to chair the TEPS AGM. Her brief, as recorded in the consent memorandum included ensuring that all necessary TEPS records are made available to facilitate the effective functioning of the AGM. There was no mention of TEPS documents having been removed during a burglary.
(b)At a conference before Woolford J on 13 December 2018, Messrs Thompson and O’Meara were directed to provide discovery of certain documents including minutes of the AGM as at 29 October 2017, a list of current members as at 29 October 2017 and electronic and hard copies of membership applications over a stipulated period. The minute records that “a wider issue of custody of and access to the Society’s records was discussed but unresolved at the conference”. Again, there was no mention that TEPS documents had been taken in a burglary.
(c)On 14 February 2019, the respondents appeared in person before Fitzgerald J. The issue was their non-compliance with orders made by Woolford J on 13 December 2018 to discover documents. There was no mention of theft of documents. The minute records that the Judge was not persuaded there were any valid reasons for non-compliance and
noted that “it does appear that Mr O’Meara and Mr Thompson may be taking a somewhat ‘laissez-faire’ approach to compliance”.
(d)In a memorandum to the Court dated 21 February 2019, Mr Thompson asserted that he possessed a membership list, receipt book, ASB bank statements (from December 2017 onwards) and the minute book. This is inconsistent with his most recent assertions.
(e)Be memorandum to the Court dated 22 February 2019, Mr O’Meara asserted that he did not hold any documents named in an order made by Woolford J as “they are held by Denny Thompson”.
[27] Mr Pilditch valiantly tried to submit that these inconsistencies were the product of lack of legal representation, but I am not so persuaded. While they may have had difficulties more recently, their solicitors only withdrew from the substantive proceeding in or about October 2018.
[28] Secondly, it is implausible that a burglar or burglars would have had any reason to steal documents belonging to a charitable organisation such as TEPS.
[29] I do not consider that the contempt has been purged. I am also not persuaded that Mr O’Meara had no notice of the application to hold him in contempt given the conflicting evidence from the process server and the association between Mr Thompson and Mr O’Meara.
[30] Pragmatically, Mr Pidgeon advised the Court that the applicants now consider obtaining compliance to be hopeless; they simply want to move on to enable TEPS to function for its charitable purpose. This saga, the obstruction and even the proceedings have all been deeply frustrating for the applicants. They have diverted both time and resources, which would have been better spent on meeting the objectives of preservation of the local area. It is frankly difficult to comprehend how those who share goals of preserving an important natural local resource have ended up in such acrimonious litigation. Fortunately, I need not resolve that. Rather, I need to resolve
the most appropriate penalty in respect of the finding of contempt and informed by subsequent events.
Is there scope in the contempt jurisdiction to restrain the respondents from attending the next AGM of TEPS as a remedial response?
[31] This issue, and those following, require analysis of the contempt jurisdiction, its purpose and scope.
[32] The High Court can punish conduct which risks undermining the administration of justice.6 Non-compliance with Court orders is a form of contempt which comes within the High Court’s common law inherent jurisdiction. The practice and procedure relating to this form of contempt is set out in the High Court Rules.7
[33] To permit Court orders to be ignored would be to undermine the rule of law. As McGrath J stated in Siemer v Solicitor-General:8
Effective administration of justice under our constitution requires that the orders of the courts are obeyed unless properly challenged or set aside. Public confidence in the administration of the law, also necessary for its effective administration, requires that there is a strong expectation that those who ignore court orders are quickly brought to account.
[34] The Law Commission’s final report on the law of contempt contains a useful summary of relevant principles:9
5.33 The usual penalty for civil contempt is the imposition of a fine. Courts exercise the power to imprison for civil contempt with great care and caution. They will not impose an order of committal to prison where the non-compliance has been accidental or unintentional or is of a minor or technical nature. Courts do not order imprisonment unless the contempt involves fault or misconduct.
6 Siemer v Solicitor-General [2013] NZSC 68, [2013] 1 NZLR 441 at [1]. Section 9 Crimes Act 1961 inferentially recognises the Court’s power to do so.
7 High Court Rules 2016, rr 17.84–17.85.
8 Siemer v Solicitor-General [2010] NZSC 54 at [26].
9 Law Commission Reforming the Law of Contempt of Court: A Modern Statute – Ko te Whakahou I te Ture mō Te Whawhati Tikanga kit e Kōti: He Ture Ao Hou (NZLC R140, 2017).
[35] Courts have a discretion. They must consider the extent of the contempt, motive and the prejudice suffered by the innocent party. A full Court of the High Court stated that a penalty ought to be assessed by applying sentencing methodology.10
[36] The applicants have revised their approach on penalty as the ground has shifted. This is not surprising. Their primary goal initially was to achieve compliance with the Court order. Their objective has switched to accountability for the respondents’ failure to comply and the affront to the dignity of the Court. They sought a fresh warrant for arrest at the first hearing. They subsequently settled on and advocated for a sentence of community work and indemnity costs. They rely on the inherent jurisdiction of the Court and a sentencing approach akin to the methodology set out in the Sentencing Act 2002.
[37] Towards the end of the penalty hearing, Mr Pidgeon sought to expand the relief sought. Drawing an analogy with the Court’s discretion to strike out a proceeding or defence, he submitted that this Court has jurisdiction to grant an injunction restraining the respondents from attending the next AGM of TEPS. I permitted Mr Pidgeon to file a supplementary memorandum. He did so. I have now also received memoranda in response from Mr Pilditch and in reply.
[38] There is no doubt that the Court has a wide discretion to do what is considered necessary and appropriate in response to a contempt. Mr Pidgeon submits that this wide discretion provides scope to craft a just and equitable penalty to fit the needs of the situation. He meets head-on the potential impact on values and rights under the New Zealand Bill of Rights Act 1990 – the right to peaceful assembly in s 16 and the right to freedom of association in s 17. He submits that any limitation on the respondents’ rights by making an order restraining their attendance at the AGM would amount to a reasonable and demonstrably justifiable limitation.11 He emphasises that the object would be to enable TEPS to conduct a peaceful AGM, an opportunity denied to it by the conduct of the respondents. He submits that there is a rational connection to this objective and the limitation would be proportionate to the legitimate objective.
10 Solicitor-General v Miss Alice [2007] 2 NZLR 783 (HC) at [88].
11 R v Oakes [1986] 1 SCR 103.
[39] Mr Pilditch for the respondents submits that it is doubtful there is jurisdiction to order an injunction solely as a punitive measure against past conduct and points out that the primary basis for the new orders sought relates to different alleged conduct. He inferentially suggests that the respondents have purged their contempt by now providing explanations under oath for their failure to deliver up documents, however, I have already rejected this submission.
[40] While the arguments are interesting and novel ones, in my judgement there is a simple answer which makes it strictly unnecessary to resolve this question in the context of this case. I accept that there is jurisdiction to grant injunctive relief to restrain further repetition of an act of contempt or to prevent a contempt from being committed.12 But the injunction sought now is far removed from that example. It lacks sufficient nexus to the contempt at issue and the rationale for its punishment. The Court order required the respondents to deliver documents. They failed to do this. Given the opportunity to explain themselves, they provided an excuse which, had it been conveyed earlier in the day, would have saved time, expense, and judicial resources. The contempt penalty must directly respond to that conduct by coercing compliance or denouncing the conduct because it interfered with the due administration of justice. In short, I must separate out the conduct which is the subject of the contempt proceeding and the conduct which underlies the substantive complaint.
[41]I therefore dismiss the application to restrain attendance at the next AGM.
[42] I consider it appropriate, however, to impose limits on the respondents’ participation in the remaining issues in the substantive proceedings in view of their default. This is analogous to the jurisdiction to strike out a claim or stay a defence in response to a party’s failure to comply with Court orders in that proceeding. As Brewer J held in Otoy New Zealand Ltd v Kozlov, “[t]those who choose to disobey Court orders must live with the consequences”.13 I understand from Mr Pidgeon that the
12 Ian Cram, The Law of Contempt (4th ed, Lexis Nexis, London, 2010) at 13.62.
13 Otoy New Zealand Ltd v Kozlov [2017] NZHC 1485 at 28, citing McKay Shipping Ltd v Miu HC Auckland CIV-2007-404-1038, 28 June 2007 at [12].
further orders at issue are limited to directions for the holding of a new AGM. I will return to this later in my judgment.
Is there jurisdiction to make an order that the respondents serve a sentence of community service?
[43] Counsel have referred me to decisions of the High Court imposing a sentence of community work on parties found to have committed contempt. In Queen Elizabeth the Second National Trust v Netherland Holdings Limited,14 Dunningham J expressed initial reservations about whether a community-based sentence was available although the defendant did not expressly challenge the Court’s jurisdiction. She described it as a statutorily created penalty option provided for in the Sentencing Act 2002 and referred to the decision in R v Palmer,15 a decision of the English High Court. In that case, the Court had reluctantly held that a person found guilty of a criminal contempt of court could not be put on probation because the relevant legislation said that a probation order could only be made in respect of a person “convicted of an offence”.
[44] Dunningham J was able to distinguish this case in the New Zealand context. She noted the definition of “offender” in s 4 of the Sentencing Act 2002 which includes “a person who is dealt with or who is liable to be dealt with for…contempt of court” and determined that she could, if she saw fit, impose a community-based sentence.
She declined to do so.16
[45] Unlike Dunningham J, I have had the benefit of submissions on this jurisdictional issue and consequently have reached a different conclusion. Although the definition of ‘offender’ is wide, I agree with Mr Pilditch that there remains a lacuna in the Sentencing Act 2002 in respect of penalties for contempt. This is because s 55 reads (emphasis added):
55. Sentence of community work
(1)A court may sentence an offender to community work—
(a)if the offender is convicted of an offence punishable by imprisonment; or
14 Queen Elizabeth the Second National Trust v Netherland Holdings Limited [2014] NZHC 1094 at [47]–[48].
15 R v Palmer [1992] 3 All ER 289.
16 See also Qu and Anor v Zeng and Anor [2018] NZHC 1355; Global Kiwi NZ Limited v Fannin
[2016] NZHC 1767.
[(ab) if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a sentence of home detention may be imposed on conviction; or]
(b)if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction.
(2)The sentence may be for the number of hours, being not less than 40 or more than 400, that the court thinks fit.
(3)This section is subject to sections 56 and 57.
[46] It is difficult to resolve the clear inconsistency between the definition of “offender” and the statutory basis for a community work sentence. I doubt that an individual found to have committed contempt is “convicted of an offence” within the meaning of s 55. As such, in my view, the Sentencing Act 2002 does not provide the jurisdiction to impose a sentence of community work in the case of contempt.
[47] I am supported in this conclusion by the enactment of the Contempt of court Act 2019 which is to come into force in August 2020. The new Act specifically provides for the penalties of imprisonment (not exceeding 6 months), a fine or an order for community work for breach of a court order. Section 19 deals with the application of the Sentencing Act 2002 and Criminal Procedure Act 2011. It reads:
19 Application of Sentencing Act 2002 and Criminal Procedure Act 2011
(1)Subparts 1, 2, and 3 of Part 2 of the Sentencing Act 2002 apply to any action taken under section 16(4)(a) as if the person had been convicted of an offence and any imprisonment, fine, or order to do community work were a sentence.
(2)Subpart 5 of Part 6 of the Criminal Procedure Act 2011 (appeals against finding of or sentence for contempt of court) applies to any finding of a failure to comply and to any imprisonment, fine, order to do community work, or sequestration order under section 16(4)(a) or (b).
[48] The material phrase is “as if the person had been convicted of an offence and any imprisonment, fine, or order to do community work were a sentence” (emphasis added). This is a statutory acknowledgement that, but for this deeming provision, a
contemnor is not “convicted of an offence’ and the Sentencing Act 2002 is not otherwise engaged. 17
[49] There remains the question whether an order for community work may still fall within the common law inherent jurisdiction on the basis that the “greater includes the lesser”. All parties accept that the Court has jurisdiction to impose a custodial sentence. They also accept the Court has jurisdiction to impose a fine. The High Court Rules prescribe the practice and procedure for issuing an order of arrest and committing a person for contempt of court.18 An order for community work is lower in the sentence hierarchy than a custodial sentence but sits above the imposition of a fine. Although recognising this, Mr Pilditch submits that community work is the preferable outcome in the event I am minded to penalise the respondents. He argues that each has limited financial means, but both are already working in the community in a non-rewarded capacity.
What is the appropriate penalty?
[50] In my view, an order for community work, although attractive at first blush, is not the appropriate response in this case. Therefore, I do not have to determine the question of whether it is available in the common law inherent jurisdiction. The practical reality is that an order for community work does no more than reflect the status quo for Messrs Thompson and O’Meara. In these circumstances, it amounts to an inadequate response in that it does not uphold the public interest in maintaining the authority of the Courts. It does not serve to denounce conduct which tends to undermine the administration of justice.
[51] Instead, I am adopting the more conventional approach of imposing a fine on each respondent. I do not have full information about their financial circumstances, but I note that the applicants do not challenge Mr Pilditch’s submission that they have limited ability to pay a fine.
17 The sentencing methodology and principles in the Sentencing Act 2002 still inform the approach. See Solicitor-General v Miss Alice [2007] 2 NZLR 783 (HC) at [88].
18 Rule 17.84 and 17.85 High Court Rules. Rule 7.48 of the High Court Rules provides a power for the Court to commit a party to prison for wilfully failing to comply with an interlocutory order or for wilfully failing to comply with an order for discovery or for production or inspection of documents.
[52] The applicants initially submitted that a fine in the range of $8,000-10,000 would be appropriate, based on previous cases. However, previous cases are only of limited assistance because each is fact and context specific. In my judgement, while the respondents’ conduct is deserving of disapproval, it does not warrant a penalty at the most serious end of the spectrum.
[53] Accordingly, I determine that a fine of $750.00 for each respondent is appropriate. The jurisdiction regarding a fine extends to ordering part of it to be paid to a complainant who has set the Court proceedings in motion but an element of amends to the Court as a public institution should always be present. 19 Accordingly, I also direct that 90 per cent of the penalty should be paid to the applicants.
[54] The High Court Rules expressly provide that if a party fails to comply with an interlocutory order, a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.20 Rule 7.48(2) states that the Judge may, for example, order that any pleading of the party in default be struck out in whole or in part. The Order in question in this case had the hallmarks of an interlocutory order in that it directed the documents to hand over TEPS documents to Ms Muller “to be held pending further order of the Court”.
[55] Even if it is not an interlocutory order, the policy rationale must be the same. Courts are obviously reluctant to strike out a defendant’s defence but where there has been substantial prejudice or contumelious conduct, the Court accepts it will be appropriate. There has been substantial and on-going prejudice to the applicants through the respondents’ failure to provide the documents captured by the underlying orders, and by the late and unsatisfactory explanation. I therefore make an order that both respondents be prohibited from taking any further step in the underlying substantive Court proceedings in respect of directions for the holding of an AGM by TEPS.
19 Taylor Bros Ltd v Taylors Group Limited [1991] 1 NZLR 91 (CA) at 5-6.
20 High Court Rules 2018, r 7.48.
Summary of result
[56]Accordingly, I:
(a)impose a fine against each respondent in the sum of $750.00 and direct the Registrar to pay 90% of such fine to the applicants on receipt;
(b)make an order that the respondents be prohibited from taking any further step in the underlying substantive proceedings in respect of directions for the holding of an AGM by TEPS.
Costs
[57] Mr Pilditch has properly addressed the Court on the question of who is to meet his costs under s 178(2) of the Senior Courts Act 2016. As I have made the lesser alternative order sought by the applicants in their supplementary submission, I dismiss the application that his costs be met in part by the applicants. I direct that his costs be met out of public funds.
[58] I am provisionally satisfied that an order in favour of the applicants under r 14.6 of the High Court Rules for actual reasonable legal costs incurred by the applicants is justified, however, these have not yet been quantified. I invite counsel for the applicants to file and serve a memorandum of no more than two pages setting out the costs and disbursements incurred in respect of the two penalty hearings. This is to exclude costs associated with the supplementary memoranda filed after the hearing since I have rejected the primary relief sought by those submissions.21
[59] Any challenge to the reasonableness of those costs by the respondents is to be filed and served within a further seven (7) working days. I will then make an Order for costs on the papers.
......................................................
Walker J
21 Costs have already been ordered in respect of the substantive contempt hearing on a 2B basis.
0
7
1