Peter Dimitri Papas & Anor v Warwick Sutton Grave

[2014] HCASL 96

PETER DIMITRI PAPAS & ANOR

v

WARWICK SUTTON GRAVE & ANOR

[2014] HCASL 96
S197/2013

1. The application is said to give rise to a question concerning the duty of counsel when making an ex parte application.  It arises in this way:  counsel was briefed by the respondents to apply for an ex parte injunction restraining the applicants from undertaking construction work on the respondents' land.  The applicants had commenced proceedings in the Equity Division of the Supreme Court of New South Wales claiming an order requiring the respondents to consent to a development application to do work on that part of the respondents' land as was subject to the applicants' right of way. 

2. The application came before Ward J, the Equity Division Duty Judge, on 13 June 2012.  Counsel submitted that the actions of the applicants in resorting to "self-help" after the commencement of proceedings amounted to a contempt.  Counsel drew attention to the circumstance that the respondents were not offering the usual undertaking as to damages.  He submitted that in the circumstances it was inappropriate to impose upon the respondents the risk of such an undertaking. 

3. Ward J granted the injunction without requiring an undertaking as to damages.  Her Honour gave the applicants liberty to apply to vary the order on one day's notice.  The order was expressed to operate until the return date of the summons on 2 July 2012.  On that date the order was continued by consent. 

4. On 13 August 2012, the respondents filed a motion claiming an order that the first applicant be found guilty of contempt arising out of occasions between 13 June and 6 August 2012, when it was alleged that he had caused work to be carried out on their land.  On 27 August 2012, the applicants filed a motion seeking to have the orders made by Ward J "dissolved ab initio". 

5. The dissolution motion came before Windeyer J.  It was argued on the applicants' behalf that counsel had failed to discharge his duty of full and frank disclosure on the ex parte application.  Windeyer J was not persuaded that the factual basis for that contention was established and he dismissed the motion. 

6. The applicants sought leave to appeal to the Court of Appeal of the Supreme Court of New South Wales.  The Court of Appeal (Basten and Emmett JJA and Sackville AJA) granted leave to appeal but dismissed the appeal.  Emmett JA, giving the leading judgment, observed that counsel had submitted to Ward J that the applicants' actions in carrying out the work "arguably constituted an abuse of process or contempt"[1].  His Honour considered that while full argument may have revealed that the submission was flawed it was "not entirely without support in the authorities"[2].  His Honour concluded there was no failure to discharge the duty of full and frank disclosure in this case[3].

   [1]Papas v Grave [2013] NSWCA 308 at [77].

   [2]Papas v Grave [2013] NSWCA 308 at [77].

   [3]Papas v Grave [2013] NSWCA 308 at [78].

7. The applicants apply for special leave to appeal.  They submit that the Court of Appeal has substantially narrowed the duty of counsel appearing on an ex parte application to one to not mislead the court and to not advance unarguable propositions of law.  The Court of Appeal's statement of the content of the duty was in accordance with well-settled authority[4].  The first special leave question reduces to one of fact.  The remaining special leave questions do not raise any question of law of general importance nor do they engage the interests of the administration of justice.

   [4]Papas v Grave [2013] NSWCA 308 at [71]-[73] citing Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681-682 per Isaacs J; [1912] HCA 72.

8. The application is dismissed.

9. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
13 May 2014 S.J. Gageler