Naidoo v Naidoo
[2003] WASC 246
NAIDOO & ANOR -v- NAIDOO & ANOR [2003] WASC 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 246 | |
| Case No: | CIV:1855/1999 | 27 OCTOBER 2003 | |
| Coram: | PULLIN J | 27/10/03 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DHANALUTCHMEE NAIDOO YOGANATHAN SOOBIAH NAIDOO RAMAKRISHNA MARRIEMUTHA NAIDOO R M NAIDOO PTY LTD (ACN 009 084 324) |
Catchwords: | Contempt Turns on own facts |
Legislation: | Nil |
Case References: | Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Naidoo v Naidoo [2002] WASC 289 Temwood Holdings Pty Ltd v Oliver [1999] WASC 212 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
YOGANATHAN SOOBIAH NAIDOO
Second Plaintiff
AND
RAMAKRISHNA MARRIEMUTHA NAIDOO
First Defendant
R M NAIDOO PTY LTD (ACN 009 084 324)
Second Defendant
Catchwords:
Contempt - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr K C Staffa
Second Plaintiff : Mr K C Staffa
First Defendant : Mr A Metaxas
Second Defendant : Mr A Metaxas
Solicitors:
First Plaintiff : Staffa Lawyers
Second Plaintiff : Staffa Lawyers
First Defendant : Metaxas & Vernon
Second Defendant : Metaxas & Vernon
Case(s) referred to in judgment(s):
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Naidoo v Naidoo [2002] WASC 289
Temwood Holdings Pty Ltd v Oliver [1999] WASC 212
Case(s) also cited:
Nil
(Page 3)
1 PULLIN J: By notice of motion dated 28 August 2002, the defendants moved for an order that the second plaintiff be found guilty of contempt of court. The notice of motion when it was first filed alleged that the contempt of court consisted of the use of a document which had been discovered in this action, namely, a copy of a contract between the first defendant and the first plaintiff for the sale and purchase of proposed Unit 5, corner of Brisbane Place and Brisbane Terrace, Perth, dated 29 August 1996, and that this had been used in other proceedings; namely CIV 1802 of 2002
2 It is not now proposed by the defendants to pursue the allegation that there was contempt of court in relation to that document, and as a result, that part of the application has to be dismissed. This morning there was a motion by the defendants' counsel to amend the notice of motion to refer to a copy-letter from BankWest to Dr R M Naidoo, dated 11 June 2001. It is alleged that document also was used in the other proceedings, CIV 1802 of 2002, and that it was a contempt of court to do so because it was in breach of the implied undertaking given in these proceedings, because this document had been discovered by the defendants in this action.
3 The defendants had proposed this amendment back in November 2002, indeed on 27 November 2002, and there were discussions between the parties which ultimately led to the second plaintiff acknowledging that there had been a breach of the implied undertaking, and the second plaintiff also put in writing an apology for having done so, and that document is filed in these proceedings.
4 That apology would not make sense unless the notice of motion was amended to raise the allegation that there had been a contempt of court as alleged by the defendants. In my opinion, the notice of motion had to be amended, and I have made an order amending the notice of motion as per the minute dated November 2002, filed on 3 December 2002, which now means the notice of motion refers to the letter from BankWest to Dr Naidoo dated 11 June 2001.
5 The purpose of the implied undertaking in these circumstances is to maintain the integrity of the administration of justice: Hamersley Iron Pty Ltd v Lovell(1998) 19 WAR 316 at 324. If the implied undertaking is breached, then it will amount to a contempt of court. However, the court is not bound to exercise its summary jurisdiction to deal with it. See Temwood Holdings Pty Ltd v Oliver[1999] WASC 212 per Steytler J; and see also Naidoo v Naidoo[2002] WASC 289 per Wheeler J.
(Page 4)
6 In the earlier case of Naidoo v Naidoo, Wheeler J dealt with a contempt by the solicitor acting for the plaintiffs in breaching the implied undertaking. She decided in those proceedings that she would exercise her discretion not to punish the solicitor for the contempt that he had committed. The solicitor was ordered to pay the defendant's costs of the motion to be taxed.
7 Like Wheeler J, I will dismiss the motion in its entirety because I am satisfied that the apology is a genuine one proffered to the Court. In circumstances where the motion for contempt against the legal practitioner acting for the party has been dealt with in that way, then, in my opinion, it is appropriate that the motion for contempt against the second plaintiff be dealt with in a similar way.
8 Let me add, however, that this case should not be seen as setting a standard which might encourage others to breach the implied undertaking because of the lack of penalty. In the particular circumstances of this case, and particularly the fact that Wheeler J was lenient with the solicitor, it is appropriate not to impose a penalty in relation to the second plaintiff because it would be unfair to punish the client of the practitioner when the practitioner who was advising the client has not been punished.
0
4
0