NAIDOO & ANOR -v- NAIDOO & ANOR [2002] WASC 289

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 289
Case No:	CIV:1855/1999	Heard:	27 NOVEMBER 2002
Coram:	WHEELER J	Delivered:	4/12/02
No of pages:	5	Judgment Part:	1 of 1
Result:	Motion granted
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:	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

CITATION : NAIDOO & ANOR -v- NAIDOO & ANOR [2002] WASC 289 CORAM : WHEELER J HEARD : 27 NOVEMBER 2002 DELIVERED : 4 DECEMBER 2002 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:

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…

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 [2002] WASC 289
Case: [2002] WASC 289
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Naidoo v Naidoo dealt with a motion by the defendants seeking a finding of contempt against the plaintiffs' solicitor, Mr Kevin Colin Staffa, for using a document discovered in these proceedings in another proceeding. The legal issue was whether the use of the document constituted a breach of the implied undertaking to the court that documents discovered in civil proceedings will not be used for any collateral purpose. Mr Staffa argued that his use of the document was in furtherance of his duty to bring to the attention of the court anything which may impair the integrity of the judicial process. The court rejected this argument, holding that 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 be in breach of the implied undertaking. The court also held that it is not open 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. The court concluded that Mr Staffa had breached the implied undertaking and committed contempt of the court, but dismissed the defendants' motion as they did not press for a penalty of significance and Mr Staffa had offered to apologise to the court. The court ordered that Mr Staffa should pay the defendants' costs of the motion to be taxed.

The court's reasoning was based on the principle that the implied undertaking is not overridden by any other consideration, including a duty which the practitioner may owe to the court. The court held that the purpose of the implied undertaking is to maintain the integrity of the administration of justice and that it is not open to a practitioner to form and act on a view that the requirements of the implied undertaking are overridden by any other consideration. The court also held that it is possible for the practitioner to fulfil the duty owed to the court by seeking to be released from the undertaking, but it is the court which determines whether any consideration has arisen which would justify a release from the undertaking. The court concluded that Mr Staffa had breached the implied undertaking and committed contempt of the court, but dismissed the defendants' motion as they did not press for a penalty of significance and Mr Staffa had offered to apologise to the court. The court ordered that Mr Staffa should pay the defendants' costs of the motion to be taxed.

Orders