NAIDOO & ANOR -v- NAIDOO & ANOR [2003] WASC 246

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 246
Case No:	CIV:1855/1999	Heard:	27 OCTOBER 2003
Coram:	PULLIN J	Delivered:	27/10/03
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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

CITATION : NAIDOO & ANOR -v- NAIDOO & ANOR [2003] WASC 246 CORAM : PULLIN J HEARD : 27 OCTOBER 2003 DELIVERED : 27 OCTOBER 2003 FILE NO/S : CIV 1855 of 1999 BETWEEN : DHANALUTCHMEE NAIDOO

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…

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 Naidoo v Naidoo

Details

AGLC: Naidoo v Naidoo [2003] WASC 246
Case: [2003] WASC 246
Decision Date

CaseChat Overview and Summary

The case of Naidoo v Naidoo involved a motion for the second plaintiff, Dr Dhanalatchmee Naidoo, to be found guilty of contempt of court. The motion was brought by the first defendant, Ramakrishna Marriemutha Naidoo, and the second defendant, R M Naidoo Pty Ltd (ACN 009 084 324). The contempt was alleged to have arisen from the use of a document discovered in these proceedings, a copy-letter from BankWest to Dr Naidoo, dated 11 June 2001, in other proceedings, CIV 1802 of 2002. The court was required to decide whether the second plaintiff's use of the document in other proceedings constituted contempt of court, and if so, whether the court should exercise its summary jurisdiction to impose a penalty.

The court, Pullin J, dismissed the motion in its entirety. The court found that the second plaintiff had acknowledged the breach of the implied undertaking and had provided a written apology. The purpose of the implied undertaking, as established in Hamersley Iron Pty Ltd v Lovell, is to maintain the integrity of the administration of justice, and a breach amounts to contempt of court. However, the court is not bound to exercise its summary jurisdiction to deal with such a breach. The court considered the earlier case of Naidoo v Naidoo, where Wheeler J had exercised discretion not to punish the solicitor for a similar breach, and decided to dismiss the motion in the current case as well. The court noted that it would be unfair to punish the client when the practitioner who was advising the client had not been punished.

The court dismissed the motion for contempt against the second plaintiff, and no penalty was imposed. This decision should not be seen as setting a standard that might encourage others to breach the implied undertaking due to the lack of penalty. In the particular circumstances of this case, and particularly the fact that Wheeler J had been lenient with the solicitor, it was appropriate not to impose a penalty in relation to the second plaintiff.

Orders