Naidoo v Naidoo
[2002] WASC 289
NAIDOO & ANOR -v- NAIDOO & ANOR [2002] WASC 289
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 289 | |
| Case No: | CIV:1855/1999 | 27 NOVEMBER 2002 | |
| Coram: | WHEELER J | 4/12/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Motion granted | ||
| B | |||
| PDF Version |
| Parties: | DHANALUTCHMEE NAIDOO YOGANATHAN SOOBIAH NAIDOO RAMAKRISHNA MARRIEMUTHA NAIDOO R M NAIDOO PTY LTD (ACN 009 084 324) |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Commonwealth of Australia v Temwood Holdings Pty Ltd [2001] WASC 282 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Temwood Holdings Pty Ltd v Oliver [1999] WASC 212 Afkos Industries Pty Ltd v Pullinger Stewart (a Firm) [2001] WASCA 372 |
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:
Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Motion granted
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 : Kevin Staffa
Second Plaintiff : Kevin Staffa
First Defendant : Metaxas & Vernon
Second Defendant : Metaxas & Vernon
Case(s) referred to in judgment(s):
Commonwealth of Australia v Temwood Holdings Pty Ltd [2001] WASC 282
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Temwood Holdings Pty Ltd v Oliver [1999] WASC 212
Case(s) also cited:
Afkos Industries Pty Ltd v Pullinger Stewart (a Firm) [2001] WASCA 372
(Page 3)
1 WHEELER J: By notice of motion dated August 2002 the defendants in these proceedings move for an order that Kevin Colin Staffa, a legal practitioner, be found guilty of contempt of this Court. The facts are not disputed. On 1 August 2002 Mr Staffa swore an affidavit in Supreme Court action COR 313 of 2000 to which he annexed a document discovered by the defendants in this action, being a copy of a letter from BankWest to the first defendant dated 11 June 2001.
2 It appears that the affidavit sworn by Mr Staffa was in support of an application to the court to restrain the defendants' solicitors acting for a liquidator in COR 313 of 2000. It appears that there is some connection between this action and that, in the sense that some of the same parties are involved in each. It is not necessary for me to consider the detail of the connection.
3 The only matter in issue between the parties is a point of law. The defendants, the present applicants, submit that the use in Mr Staffa's affidavit in other proceedings of a document discovered in these proceedings was a clear breach of the implied undertaking to the court that documents discovered in civil proceedings will not be used for any collateral purpose. Mr Staffa submits that as an officer of the court he has a duty to bring to the attention of the court anything which may impair the integrity of the judicial process, and that the application to restrain solicitors from acting in a matter in which they may not properly act is in furtherance of that duty. It is submitted that it cannot be a breach of an undertaking to the court for a practitioner to act in furtherance of the duty which he owes to the court.
4 There are two subsidiary arguments, which can be readily disposed of. The first is to the effect that, because objection was taken in COR 313 of 2000, the affidavit in question was never read and that the document therefore had not been used for any purpose. I do not accept this submission. The document was relevantly "used" by Mr Staffa when he annexed it to his affidavit. The use may not have been an effective one, the court having refused to admit the affidavit into evidence, but the use by Mr Staffa, it seems to me, was at the moment of swearing the affidavit rather than at a later stage.
5 Second, it is submitted that the solicitors for the defendants have included the same affidavit, including the annexure the subject of this motion, in an appeal book in appeal FUL 143 of 2002, which appears to be an appeal from a decision made in COR 313 of 2000. It is submitted that the defendants' solicitors are therefore likewise guilty of contempt in
(Page 4)
- using the same document. It is not necessary for me to consider this issue. There is no motion seeking a finding of contempt against the defendants' solicitors. While in some proceedings the conduct of parties on each side will be of relevance, contempt is not an area in which it is possible to argue that "two wrongs make a right". The conduct of Mr Staffa should be evaluated independently of any alleged subsequent contempt by others.
6 Turning back to the principal submission, I accept, as apparently do the defendants, that the submission of Mr Staffa is made in good faith, in the sense that he genuinely believes that the duty which he owes to the court requires the use of the discovered document, notwithstanding the implied undertaking. However, it is my view that his submission is misconceived. The question of precisely what use of a discovered document will be in breach of the implied undertaking was considered in some detail by Steytler J in Temwood Holdings Pty Ltd v Oliver [1999] WASC 212. For the purposes of these proceedings, it is enough to summarise the position as being that use for a "collateral purpose" is use for any purpose other than for the purpose of the action in which the documents are disclosed. Even though the other proceedings may involve some of the same parties, use of a document discovered in these proceedings for any purpose in those other proceedings would therefore be in breach of the implied undertaking.
7 The purpose of the implied undertaking is to maintain the integrity of the administration of justice (Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 324 per Ipp J). The implied undertaking is not overridden by the principles of freedom of speech which are implicit in the constitutionally prescribed system of representative government (Hamersley Iron v Lovell per Ipp J at 324). Nor is the implied undertaking overridden by the interest of the Crown in upholding and enforcing the law (Commonwealth of Australia v Temwood Holdings Pty Ltd [2001] WASC 282 per Pullin J).
8 It is not open, it seems to me, to a practitioner to form and act on a view that the requirements of the implied undertaking are overridden by any other consideration, including a duty which the practitioner may owe to the court. It is possible for the practitioner to fulfil the duty owed to the court, if he or she considers that to do so would involve the use of documents discovered in some other proceeding, by seeking to be released from the undertaking. It is then open to the court to balance the relevant considerations, and to release the practitioner or not as the case may be. Mr Staffa submits that there is something artificial in the requirement to seek release from the undertaking, since the document must necessarily be
(Page 5)
- referred to during the course of such an application. In some circumstances, this may be so. In others, it may be possible to seek release from the undertaking without ever having to disclose or describe in detail the document in question. However, the point of the requirement to seek release is that it is the court which determines whether any consideration has arisen which would justify a release from the undertaking.
9 It follows from what I have said that I have reached the view that there has been a breach of the implied undertaking and a contempt of the court. It is well-established however that where there is commission of a contempt of this kind, a court is not obliged to exercise its summary jurisdiction to deal with it (Temwood Holdings v Oliver [1999] WASC 212 per Steytler J at [37] and following). I canvassed the question of penalty briefly with the parties at the hearing of this application. The defendants, as I have noted, do not question Mr Staffa's bona fides and do not press for a penalty of significance. Mr Staffa advised me that he would, of course, apologise to the Court if the views which had led him to swear the affidavit in question had been in error. In those circumstances, it appears to me that the appropriate course is to dismiss the defendants' motion. However, it was proper for the defendants to bring the matter to the Court's attention, and the view for which they contended was successful. Mr Staffa should therefore pay the defendants' costs of the motion to be taxed.
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