KEVERN V. MARSHALL [2000] NSWSC 1236

New South Wales Supreme Court

CITATION : KEVERN V. MARSHALL [2000] NSWSC 1236 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4544/99 HEARING DATE(S) : 20 December 2000 JUDGMENT DATE : 20 December 2000

PARTIES : Jeff John Kevern - plaintiff Gary Marshall - defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : The plaintiff appeared in person Mr. D. Re for defendant SOLICITORS : Blake Dawson Waldron, Sydney for defendant CATCHWORDS : PRACTICE - Contempt of court - Application involving determination of credibility of parties - No urgency - Undesirability of determining credibility on limited material, when credibility will be an issue at hearing of proceedings. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 20th December 2000

NO. 4544 0F 1999 KEVERN V. MARSHALL

JUDGMENT

1 I am dealing with a Notice of Motion to have the plaintiff dealt with for alleged contempt of Court, which was filed on 12th December 2000, and returnable today. 2 The applicant in the motion now seeks that the hearing of the motion be adjourned to the hearing of the case. The application is put essentially on this basis. 3 The urgency of the application from the defendant/applicant's point of view was that the defendant believed that the plaintiff was in breach of orders of the Court requiring the plaintiff to furnish certain information to the defendant, which the defendant needed for the hearing of the proceedings, which is to take place on 27th February 2001. 4 However, after bringing the Notice of Motion, the defendant's current solicitors learned from the defendant's previous solicitors that there had been a purported compliance with those orders, and it became apparent to the defendant's solicitors that they would not be able to prove that this purported compliance was not a proper compliance, on the evidence they had available today. 5 The Notice of Motion also alleged contempt in relation to failure to comply with a previous order that required the plaintiff not to take possession of certain items in dispute in the case. The alleged contempt in that respect was the taking by the plaintiff of some items from another person's property, at the request of that other person, and delivering them to yet another person. The plaintiff claims that that did not amount to the taking possession of the property in breach of the Court order: all he was doing was complying with a request by the first person to get material, that had been placed by the defendant on his property, off onto what the plaintiff calls "neutral ground". 6 The plaintiff opposes the application for adjournment. He wishes to have the allegations of contempt disposed of. He also says that the person to whom these items were removed is in some difficulty as to what operations he can carry out with them. 7 In my opinion, I should adjourn the Notice of Motion. There is now no urgency that the question of breach of Court orders be determined prior to the hearing. Determining the Notice of Motion will not assist this other person knowing what to do with the items that he has. If I were to determine the Notice of Motion, this would probably involve forming a view as to the credibility of the plaintiff and the defendant on limited material when, in my opinion, it is desirable that a judgment of the credibility of the plaintiff and the defendant be made on the basis of all available material, and that is something that can only happen at the hearing. 8 For those reasons, I adjourn the Notice of Motion to the hearing of the case on 27th February 2001. 9 It was the applicant/defendant who sought to have the Notice of Motion determined today, and who have applied now to have it adjourned. In those circumstances, in my opinion, the applicant should pay the respondent's costs of today. 10 I order that the applicant pay the respondent's costs of today. 11 I order that the plaintiff be permitted to make photocopies of documents produced by the Department of Agriculture. ********