MOSTERT -v- DURBAN ROODEPOORT DEEP LTD & ORS [2003] WASC 219

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 219
Case No:	CIV:1463/2003	Heard:	30 OCTOBER 2003
Coram:	EM HEENAN J	Delivered:	30/10/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Interim injunction discharged
Category:	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

CITATION : MOSTERT -v- DURBAN ROODEPOORT DEEP LTD & ORS [2003] WASC 219 CORAM : EM HEENAN J HEARD : 30 OCTOBER 2003 DELIVERED : 30 OCTOBER 2003 FILE NO/S : CIV 1463 of 2003 BETWEEN : CHARLES PHILIP MOSTERT

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…

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.

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Details

Case: [2003] WASC 219
Decision Date

CaseChat Overview and Summary

The case of Mostert v Durban Roodepoort Deep Ltd [2003] WASC 219 involved a summons by four of the five defendants in an action initiated by Charles Philip Mostert against the defendants, including Durban Roodepoort Deep Ltd, DRD Australasia ApS, DRD Australasia Pty Ltd, and Mark Wellesley-Wood. The plaintiff sought permanent injunctions against the defendants to prevent them from publishing certain confidential information contained in a deed from August 2001. The defendants applied to discharge the interim injunction granted ex parte on 29 April 2003, arguing that the plaintiff had failed to prosecute the action diligently and had no intention of doing so.

The legal issues before the court were whether the interim injunction should be discharged due to the plaintiff's failure to prosecute the action and whether the court should order the plaintiff to file and serve a statement of claim within a specified period. The court considered the principles that discretionary remedies such as interim injunctions should be revoked if the party fails to prosecute with due diligence. The court found that the plaintiff had not prosecuted the action diligently and had instead relied on the interim injunction, which was granted under the assumption that the plaintiff would prosecute the action expeditiously.

The court concluded that the interim injunction should be discharged because the plaintiff had not demonstrated a diligent prosecution of the action. The court also ordered the plaintiff to file and serve a statement of claim within 14 days, with the possibility of dismissing the action for want of prosecution if the plaintiff did not comply.

Orders