Mostert v Durban Roodepoort Deep Ltd
[2003] WASC 219
MOSTERT -v- DURBAN ROODEPOORT DEEP LTD & ORS [2003] WASC 219
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 219 | |
| Case No: | CIV:1463/2003 | 30 OCTOBER 2003 | |
| Coram: | EM HEENAN J | 30/10/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Interim injunction discharged | ||
| B | |||
| PDF Version |
| Parties: | CHARLES PHILIP MOSTERT DURBAN ROODEPOORT DEEP LTD (ACN 086 277 616) DRD AUSTRALASIA ApS DRD AUSTRALASIA PTY LTD (ACN 090 477 197) MARK WELLESLEY-WOOD WEST AUSTRALIAN NEWSPAPERS LTD |
Catchwords: | Interim injunctions Ex parte order Failure to prosecute after obtaining interim relief Failure to file statement of claim No intention to proceed Injunction discharged |
Legislation: | Nil |
Case References: | Lamshed v Lamshed (1963) 109 CLR 440 Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DURBAN ROODEPOORT DEEP LTD (ACN 086 277 616)
First Defendant
DRD AUSTRALASIA ApS
Second Defendant
DRD AUSTRALASIA PTY LTD (ACN 090 477 197)
Third Defendant
MARK WELLESLEY-WOOD
Fourth Defendant
WEST AUSTRALIAN NEWSPAPERS LTD
Fifth Defendant
(Page 2)
Catchwords:
Interim injunctions - Ex parte order - Failure to prosecute after obtaining interim relief - Failure to file statement of claim - No intention to proceed - Injunction discharged
Legislation:
Nil
Result:
Interim injunction discharged
Category: B
Representation:
Counsel:
Plaintiff : Mr G I Macnish
First Defendant : Mr G R Hancy
Second Defendant : Mr G R Hancy
Third Defendant : Mr G R Hancy
Fourth Defendant : Mr G R Hancy
Fifth Defendant : No appearance
Solicitors:
Plaintiff : Cocks Macnish
First Defendant : Allens Arthur Robinson
Second Defendant : Allens Arthur Robinson
Third Defendant : Allens Arthur Robinson
Fourth Defendant : Allens Arthur Robinson
Fifth Defendant : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Lamshed v Lamshed (1963) 109 CLR 440
Case(s) also cited:
Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
(Page 4)
1 EM HEENAN J: This is a chamber summons by four of five defendants in an action which was commenced by writ on 24 April 2003. These defendants seek the discharge of an injunction granted against each of them by an ex parte order made by a Judge of this Court on 29 April 2003.
2 The action, which was brought by the plaintiff against five defendants but not served on the fifth defendant, seeks permanent injunctions against the defendants from publishing, causing to be published or aiding, abetting, counselling or procuring publication of the fact or the contents of a particular deed entered into by the plaintiff among others, and the first three defendants in August 2001 and a further injunction restraining the same parties from in any way publishing or causing to be published or from aiding, abetting, counselling or procuring the publication of the fact that the plaintiff upon certain conditions made certain agreements in the deed.
3 The injunction which was granted and to which reference has already been made in general terms prohibited any publishing or aiding, abetting, counselling or procuring of the publication of the fact of agreement or the contents of the deed in question. The order also contained restraints against publishing or causing to be published or aiding, abetting, counselling or procuring the publication of the fact that the plaintiff had agreed to the terms set out in the deed.
4 It is acknowledged today by the parties that the terms of the restraints contained in the ex parte injunction granted on 29 April 2003 are somewhat wider than the terms of the restraints set out in the confidentiality provisions in the deed upon which the plaintiff's rights depend. The terms of the confidentiality obligations are set out in cl 11 of that deed and include a number of exceptions which may be relevant in the circumstances which seem likely to develop between the parties to these proceedings. Because of this it is evident that if the interim injunction were to stand it would require some modification in order to coincide with the limits on the confidential obligations which are the basis of the contractual duty of confidentiality. There would be no objection, as I understand it, by the plaintiff, to modification of the injunction to make it somewhat less restrictive in order to accommodate those exceptions.
5 Were I of the opinion that the injunction should continue or that the plaintiff had made out a case for an adjournment of the present application then I would be disposed to modify the injunction to make
(Page 5)
- those minor variations. However, there are other considerations which need attention. As I have already mentioned, the plaintiff seeks an adjournment of the present application by his solicitors because he is out of the country and, as his solicitors have sworn, has not been given notice of this particular application and has had no opportunity to give instructions or to provide evidence in opposition to it. As the application was only taken out on 27 October 2003 and the plaintiff was then already overseas and out of touch there is obviously very considerable merit in that application if the presence or instructions of the plaintiff are essential to meet the application which is before the Court. Consequently, were I to be of the view that the continuation of this injunction was to depend on some determination of the merits or that the submissions advanced by the counsel for the first four defendants challenging the basis upon which the injunction was made ex parte originally should be determined I would be disposed to grant an adjournment for a sufficient period for instructions to be obtained from the plaintiff and, if so desired, for evidence to be put in by him or on his behalf.
6 That leaves the issue of whether or not there is some independent basis upon which the injunction should be discharged not involving a matter which could be refuted if an opportunity were to be given to the plaintiff to do so. In this respect the principal submissions of the defendants are that no action has been taken by the plaintiff to prosecute these proceedings since the grant of the ex parte injunction and that, in correspondence between the parties' solicitors stretching from May 2003 until September 2003, a pattern of conduct has emerged which establishes that the plaintiff has no present intention to deliver a statement of claim in the action and sees no advantage to be gained in proceeding with the action. The evidence shows that the plaintiff has, for some months, taken the position that the ex parte interim injunction is a sufficient protection of his rights.
7 It is true, as counsel for the plaintiff has submitted, that the issues joined in this correspondence, namely, the attitude of the plaintiff which I have just described, and a demand on behalf of the first four defendants that the proceedings be prosecuted diligently and a statement of claim be delivered, do not appear to have been taken forward to any great degree since 19 June last. Nevertheless the situation is plain that the attitude presently being adopted by the defendants in support of the application to discharge the injunction is the attitude which was forecast in the correspondence to which I have referred. That correspondence is
(Page 6)
- to be found as annexures to the affidavit of Simon Jonathan Davis sworn on 27 October 2003 upon which the defendants rely.
8 It is the case that, apart from this present application, which was initiated on 27 October 2003 and the process which it itself has generated, there has been no progress in the action since appearances were filed in May and there has been no statement of claim filed or served. The injunction which was granted ex parte is, as is almost axiomatic, a protective order to preserve the status quo in a situation where the rights of the parties have not been in any way determined or pronounced upon by the Court. This is to allow the plaintiff to seek relief from this Court in the protection of his rights which, otherwise, might possibly have been rendered nugatory in the absence of interim relief.
9 As with all such interlocutory relief, this is based on the assumption that the party invoking the jurisdiction of the court and seeking an opportunity to vindicate his rights for which interim protection is sought will do so expeditiously and that the interim order is protective of his opportunity to establish his final position and obtain substantive relief. This has not been done in the present case - quite the contrary. Advantage appears to have been taken of the interim order which, as I say, was conditioned on the assumption of the due prosecution of the action.
10 There is authority for the proposition that discretionary remedies can be withheld or revoked if a party fails to prosecute legal proceedings with diligence. A case dealing with a delay in the prosecution of a cause, after initial proceedings have been commenced, of such a character as to lead to a denial of the equitable remedy of specific performance is the case of Lamshed v Lamshed(1963) 109 CLR 440, where the principles are fully discussed, in particular by Kitto J at page 455. Clearly Lamshedis a case dealing with specific performance as a discretionary remedy of a final nature. This present application is for an injunction in aid of contractual rights but it remains a discretionary remedy and, on the basis of the principles in Lamshed'scase, the expectation of the courts and the parties are that the claims for relief will be prosecuted with diligence.
11 I am satisfied that that has not happened in this case and that in those circumstances the interim injunction should not be allowed to stand. Consequently, I will discharge the injunction. In relation to the defendants' further application for an order that the plaintiff file and
(Page 7)
- serve a statement of claim within 14 days I will make that order. If that is not complied with there would appear to be grounds to dismiss the action for want of prosecution. Those will be the orders.
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