Legal Research
Cases
Orpen v Tarantello

Orpen v Tarantello

Case [2009] VSC 143 16 April 2009

Injunction

Costs

Abuse of Process

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4715 of 2009

ANTHONY ORPEN	Plaintiff
v
DANIELA TARANTELLO	Defendant
TERENCE GRUNDY COLIN KING	Non-party Respondents

---

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 6 & 7 April 2009
DATE OF JUDGMENT:	16 April 2009
CASE MAY BE CITED AS:	Orpen v Tarantello & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 143

---

PRACTICE AND PROCEDURE – Ex parte injunction – Failure to make full and fair disclosure of material facts on ex parte application – Legal practitioners – Costs – Costs liability of lawyers – Inherent jurisdiction to order costs against legal practitioners – Party/party costs.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr A. Herskope	Kalus Kenny
For the First Non-party Respondent	Mr M.A. Robins	Obst Legal
For the Second Non-party Respondent	Ms P.A. Neskovcin	Obst Legal

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

History of the dispute between the plaintiff and the defendant.............................................. 3

The ex parte application on 11 February 2009............................................................................... 8

The events of 12 February 2009..................................................................................................... 11

The events of 13 February 2009..................................................................................................... 13

Events subsequent to 13 February 2009....................................................................................... 15

The costs orders sought by the defendant from Mr Grundy and Mr King.......................... 16

Principles to be applied concerning the obtaining of ex parte orders................................... 16

Was there a breach of duty on 11 February 2009?...................................................................... 17

Should notice have been given to the defendant of the 11 February application?............. 24

The motives of Mr King and Mr Grundy.................................................................................... 24

Refusing to attend Court on 12 February 2009........................................................................... 26

Costs orders against legal practitioners: the principles to be applied................................... 27

Should costs be ordered against Mr King and/or Mr Grundy?.............................................. 28

Party/party, solicitor/client or indemnity costs?......................................................................... 30

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

This is an application for indemnity costs from a barrister, Mr Colin King, and his instructing solicitor, Mr Terence Grundy. The application relates to an ex parte injunction obtained by Mr King and Mr Grundy on 11 February 2009 on behalf of their client, Mr Anthony Orpen, the plaintiff. The application is made by Ms Daniela Tarantello, the defendant. The bases of the application are as follows:

(a) First, it is asserted that the application for the ex parte injunction should not have been made without notice to the defendant’s solicitors.

(b) Secondly, it is asserted that Mr King and Mr Grundy “decided, without express instructions, to apply on an ex parte basis even though the plaintiff had no urgent need …”.[1]
[1]See ground 6 of the defendant’s document headed “Statement of grounds of application by the defendant against the non-parties”, which sets out the detail of the defendant’s complaint against the non-parties.

(c) Thirdly, it is asserted against Mr King[2] that when he appeared on 11 February 2009, he failed to disclose a number of relevant facts and/or misled the Court.[3]
[2]Although, ultimately, the defendant expressed an intention to rely on the same matters vis-à-vis Mr Grundy (noting that the first…

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 Orpen v Tarantello

Details

AGLC: Orpen v Tarantello [2009] VSC 143
Case: [2009] VSC 143
Decision Date: 16 April 2009

CaseChat Overview and Summary

Orpen v Tarantello involved a dispute between Orpen and Tarantello, with Orpen seeking an injunction against Tarantello. The case was heard in the Supreme Court of New South Wales. Orpen applied for an ex parte injunction, a type of injunction granted without notice to the respondent, on the basis that Tarantello had failed to fully and fairly disclose material facts in the application. The dispute centred on whether Orpen had properly exercised its discretion to grant the injunction and whether there was sufficient evidence to support the application.

The primary legal issues before the court were whether Orpen had correctly exercised its discretion in granting the injunction and if the failure to make full and fair disclosure of material facts warranted any particular legal consequences. The court needed to consider the inherent jurisdiction to order costs against legal practitioners and whether such an order would be appropriate given the circumstances of the case. Additionally, the court had to determine the costs liability of the lawyers involved and whether party/party costs should apply.

The court found that Orpen had not fully exercised its discretion in granting the injunction due to the lack of full and fair disclosure of material facts. Consequently, the court ruled that Orpen had acted improperly in this regard. The court exercised its inherent jurisdiction to order costs against the legal practitioners involved, holding them liable for the costs of the proceedings. The court also determined that party/party costs were appropriate, placing the burden of costs on the legal practitioners rather than the parties themselves. This decision underscored the importance of full disclosure in ex parte applications and the consequences of failing to meet such standards.

Orders