IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLAINT NO. 16/85

BETWEEN

VINCENT ALFRED KURA TERATU INGRAM
Plaintiff

AND

THOMAS ROBERT ALEXANDER HARRIES DAVIES
First Defendant

AND

PUPUKE ROBATI
Second Defendant

Hearing: 18 September 1987
Judgment: Wednesday the 13th day of January 1988

JUDGMENT OF SPEIGHT CJ

As the parties and counsel well remember, this case had its historical origin in criminal proceedings, alleging failure to account for Government monies, brought against the plaintiff, and arising out of his conduct as a former Cabinet Minister. The informations were laid on 15.11.1983 and 20.1.1984 and depositions were taken.

After hearing a pre-trial motion, the Hon. Mr Justice Prichard dismissed the information on 22 March 1984, saying that, in his view, a jury would be unlikely to convict on the evidence in the depositions. This, of course, had the effect of an acquittal, and terminated those criminal proceedings.

Thereafter, on 15 March 1985, Mr Ingram filed the present writ, alleging malicious prosecution. The burden of the allegations is that, although the prosecution was brought by the Department of Police, acting on the advice and with the investigative assistance of the New Zealand Police, relevant information as to Cabinet procedures and practices on accountability had not been made known to either Police force and that responsibility lay with Cabinet and in particular the two defendants, who were then respectively Prime Minister and Deputy Prime Minister.

Mr Skeats, acting, as the Court has always understood, for both defendants, has filed an Application to Dismiss for failure on the part of the plaintiff to produce documents referred to in the plaintiff's affidavit of documents. An order to this effect for the plaintiff to produce, had been made by the Court (sitting in Auckland) on 20 March 1987.

Much of the history of the interlocutory steps which have been taken, both before and after that date, have been documented in a letter from Mr Skeats to the Court, dated 21 October 1987, a copy of which Ingram has.

Although it is normal practice for supporting informations to be contained in an affidavit, I recognise that much of this information is solely within Mr Skeat's knowledge - dealing in part with his discussions with the plaintiff, who is a brother practitioner. Had Mr Skeats been required to file an affidavit, he would not have been able to appear on the application. I am prepared to accept Mr Skeat's letter in lieu of an affidavit for the following reasons:

(1) Cook Islands' civil procedure gives the power to accept what evidence, in whatever form, I think proper.

(2) Mr Skeats is a practitioner of total integrity whose assurances I would unhesitatingly accept.

(3) Most of the material in the letter accords with my own extensive knowledge of the steps taken in the proceedings - including a number of occasions when Mr Skeats has applied through the Registrar for fixtures attempting to have orders made for compliance with interlocutory applications - which requests have frequently had to be declined or postponed because of the plaintiff's reported inability to attend.

(4) When this application was finally heard by me in December, Mr Ingram did not object to the information being put forward in letter form, nor did he challenge its accuracy.

I have just mentioned a hearing in December 1987. As all practitioners are aware, it is not uncommon for me to deal with interlocutory and other routine matters on a multi-subscriber telephone conference between Rarotonga and Auckland. That is what happened here, with Mr Ingram, Mr Skeats, the Registrar and I all speaking to each other on a four-way conference phone connection. The system has worked admirably over the years and I am satisfied that, on this as on other occasions, everyone was fully heard.

Now in December, Mr Skeats advised that, at long last, Mr Ingram had produced or was about to produce the documents for inspection and that the order made by me on 20 March had in effect now been complied with.

Mr Skeats, however, pressed his application for the proceedings to be struck out. He cited the well-known New Zealand case of N.Z. Industrial Gases Ltd. v Andersons Ltd, (1970) NZLR 58. In that case, McCarthy J referred to well known authorities, such as Allen v Sir Alfred McAlpine & Sons Ltd, wherein it has been said that a party applying must show inordinate, inexcusable, and seriously prejudicial delay.

The learned judge, however, went on to say that these principles are not necessarily exclusive, and later that one must consider all the delays, for they may be cumulative.

Here Mr Skeats says that although this order for production was finally, and after much prevarication complied with, yet the history of the whole affair has shown a total reluctance on the part of the plaintiff to advance the matter at all, unless and until pressed. My experience throughout, including the frustrating attempts to get even interlocutory matters to hearing, confirms this submission.

No particular and specific prejudice has been pointed to, but Mr Skeats is perfectly correct when he says that delay is always prejudicial, especially to a defendant who does not know what particular weapons will be hurled against him, and hence does not have as good an opportunity as an eager plaintiff to note and record occurrences which may otherwise be forgotten due to the passage of time - matters which may not have loomed large at the time and may well have become submerged in the ever-bubbling cauldron of Cook Islands political allegiances and enmities.

I recollect that, in September, Mr Skeats communicated with me, in the hearing of the Registrar, to advise that he was anxious for a hearing of the present application but that Mr. Ingram had told him that, in private conversation, Sir Thomas and Mr Robati had indicated that they did not wish the case to be struck out. This certainly seemed a most surprising suggestion. Mr Skeats said that he had checked with his clients and they denied having said any such thing. As Mr Ingram was again not available to speak with us on the telephone, I reluctantly decided that the matter should be further adjourned for three weeks to enable the instructions to be confirmed. Unfortunately, I was heavily engaged in judicial and administrative matters of a taxing nature in another Pacific jurisdiction and have no note of the exact date of this occurrence.

Had I been less indulgent and made a prompt fixture, I am an even more odd exchange has taken place - viz. at the four-way conference in December, already referred to - by which time the plaintiff's default was in sight of being remedied.

As already noted, Mr Skeats renewed his application on the basis that all delay could be considered and the passage of time was cumulatively disadvantaging the defendants. He also said that he had conferred with both defendants that very morning and they had confirmed his instructions.

Mr Ingram has made a somewhat surprising submission. Apart from putting forward the normal argument that the delay was not excessive, he said that he had spoken to Sir Thomas Davis who did not wish the matter struck out and in exchange he (Mr Ingram) had agreed that he did not wish to proceed against Sir Thomas. He wanted the writ to still lie in Court, but that he was not intending now to ask for it to be brought on. As for the second defendant, however, he wished to be free to proceed against him.

Well this is quite at odds with the position as Mr Skeats understands it, and I doubt whether any Judge can act on an assurance from one counsel that his opponent's instructions are not as counsel state them to be. But if I can accept Mr Ingram's remarks at face value, the position becomes even more odd. It will be recalled that the cause of action against each defendant is the same - that certain procedures were approved by Cabinet, and that they, by virtue of their respective positions, would know the same and failed to fully inform the Police.

Of course, a plaintiff, after issue of proceedings against two defendants, may learn that one is not implicated. It is not uncommon in such circumstances for a plaintiff to discontinue against that defendant but that is not what Mr Ingram seeks. Faced with two defendants who are alleged to be in pari delicto he seeks to continue against one and leave the other in a Damocles position.

One can only speculate on what may lie behind all this. It is of course common knowledge that, in earlier days, these three gentlemen were close political allies. Later, the plaintiff parted company from the other two and their party, and became an Opposition member. More recently, Sir Thomas has been deposed from the Prime Ministership by his Party and has been succeeded by Dr Robati. What his present political position or power is, is no concern of mine, except to note that political alliances, which are notoriously ephemeral, seem to have some bearing on the present conduct of the matter and that casts a doubt over the question of bona fides.

I return to principles and to the defendants' application. The order has now been complied with, but the Court has an overall discretion to see that proper causes are conscientiously advanced, and that litigants are not subject to the harassment of proceedings being needlessly and mysteriously kept in abeyance. The jurisdiction is not to be abused, and the constant delays and evasions which Mr Skeats' letter details are not consonant with the proper conduct of court business. The defendants are entitled to have the proceedings struck out for prejudicial delays and I so order.

Costs to the defendants $300.

SPEIGHT CJ