CASTLEDINE -v- BORONGA PTY LTD & ORS [2000] WASC 215

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 215
Case No:	CIV:2185/1995	Heard:	15 AUGUST 2000
Coram:	ANDERSON J	Delivered:	31/08/00
No of pages:	12	Judgment Part:	1 of 1
Result:	Originating summons dismissed
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Parties:	BRIAN PERCY CASTLEDINE BORONGA PTY LTD POLLOCK NOMINEES PTY LTD KEVIN TREVOR POLLOCK
Catchwords:	Contempt of court Breach of undertaking How proceedings should be brought Form of charge of contempt Sufficiency of particulars Amendment of charge Refusal to allow Nature of contempt proceedings Standard of proof in civil contempt
Legislation:	Rules of the Supreme Court, O 55 r 4, r 5 Transfer of Land Act, s 138
Case References:	Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993 Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15 Witham v Holloway (1995) 183 CLR 525 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CASTLEDINE -v- BORONGA PTY LTD & ORS [2000] WASC 215 CORAM : ANDERSON J HEARD : 15 AUGUST 2000 DELIVERED : 31 AUGUST 2000 FILE NO/S : CIV 2185 of 1995 BETWEEN : BRIAN PERCY CASTLEDINE

Plaintiff

AND

BORONGA PTY LTD

First Defendant

POLLOCK NOMINEES PTY LTD

Second Defendant

KEVIN TREVOR POLLOCK

Third Defendant

Catchwords:

Contempt of court - Breach of undertaking - How proceedings should be brought - Form of charge of contempt - Sufficiency of particulars - Amendment of charge - Refusal to allow - Nature of contempt proceedings - Standard of proof in civil contempt

Legislation:

Rules of the Supreme Court, O 55 r 4, r 5

Transfer of Land Act,s 138

(Page 2)

Result:

Originating summons dismissed

Representation:

Counsel:

Plaintiff : Mr P S Bates

First Defendant : Mr G J O'Hara

Second Defendant : Mr G J O'Hara

Third Defendant : Mr G J O'Hara

Solicitors:

Plaintiff : D'Angelo & Partners

First Defendant : Kott Gunning

Second Defendant : Kott Gunning

Third Defendant : Kott Gunning

Case(s) referred to in judgment(s):

Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98
Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993
Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15
Witham v Holloway (1995) 183 CLR 525

Case(s) also cited:

Nil

(Page 3)

1 ANDERSON J: This matter was begun by originating summons on 24 November 1995. It arises out of events in another action which was begun by generally endorsed writ on 30 December 1992 - CIV 2687 of 1992. It is convenient to refer to the latter as the main action. Mr Castledine is plaintiff in both proceedings.

2 The main action concerned subdivisional land in the suburb of Wilson. The land was comprised of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Castledine v Boronga Pty Ltd

Details

AGLC: Castledine v Boronga Pty Ltd [2000] WASC 215
Case: [2000] WASC 215
Decision Date: 31 AUGUST 2000

CaseChat Overview and Summary

The dispute between Castledine and Boronga Pty Ltd was adjudicated by the Supreme Court of New South Wales. Castledine, the plaintiff, sought to hold Boronga in contempt of court for allegedly breaching an undertaking given during a previous proceeding. The nature of the dispute revolved around the form and particulars of the charge of contempt and the procedural requirements for bringing such proceedings.

The legal issues before the court included whether the charge of contempt was adequately particularised, the appropriate form for such a charge, and whether the charge could be amended post-hearing. Additionally, the court had to determine the standard of proof applicable in civil contempt proceedings and whether the proceedings themselves were appropriately brought.

The court held that the charge of contempt was not sufficiently particularised and, therefore, inadequate. Despite acknowledging that the charge could potentially be remedied by amendment, the court refused to allow such amendment due to the procedural requirements not being met. The court further determined that civil contempt proceedings should be brought by originating summons and that the standard of proof required is the balance of probabilities. Ultimately, the court found that the proceedings were not correctly brought, leading to the dismissal of the originating summons.

Orders

Orders of the court

Originating summons dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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