Papas v Grave

[2013] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Papas v Grave [2013] NSWCA 308

Hearing dates:

29 May 2013 and 19 July 2013

Decision date:

23 September 2013

Before:

Basten JA at [1];
Emmett JA at [15];
Sackville AJA at [92].

Decision:

1. To the extent necessary, leave is granted to the applicants to appeal from the judgment in the Equity Division of 27 November 2012.

2. The applicants are directed to file within seven days the draft notice of appeal contained in the white folder.

3. Appeal dismissed.

4. The applicants are to pay the respondents' costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

REMEDIES - ex parte interlocutory injunction - whether breach of disclosure obligation by moving party - where no final relief sought - where moving party claimed to be protecting integrity of Court's processes by preventing self-help by plaintiff - where no undertaking as to damages - where other party subsequently consented to continuation of injunction - where other party later sought dissolution of injunction ab initio so as to cause alleged contempt for failing to comply with injunction to fall away - whether subsequent consent relevant to dissolution motion

PROCEDURE - civil - judgments and orders - contempt - whether proceedings relate to contempt under s 101(5) Supreme Court Act 1970 so as to obviate requirement for leave to appeal - where injunction granted to forestall plaintiff's alleged contempt in nature of self-help or abuse of court's processes - where second alleged contempt in failing to comply with injunction

PROCEDURE - civil - judgments and orders - whether orders of Supreme Court as superior court of record valid until set aside - whether such orders can be dissolved ab initio - whether failure to comply with such orders contempt, regardless of their correctness

Legislation Cited:

Environmental Planning and Assessment Act 1979
Supreme Court Act 1970, ss 101(2)(e), 101(5)

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Hadkinson v Hadkinson [1952] P 285
McGregor v Henry [2006] NSWSC 368
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Papas v Grave [2012] NSWSC 1461
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460
Rubie v Rubie [1911] HCA 71; (1911) 13 CLR 350
State of New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144
Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Category:

Principal judgment

Parties:

Peter Papas (First Applicant)
Tami Papas (Second Applicant)
Warwick Grave (First Respondent)
Julianne Grave (Second Respondent)

Representation:

Counsel:
R Newlinds SC; S Nash (First and Second Applicants)
FG Kalyk (appeared for First and Second Respondents on 29 May 2013)
BW Rayment QC (appeared for First and Second Respondents on 19 July 2013)
Solicitors:
Stephen Wawn & Associates (First and Second Applicants)
Evangelos Patakas (First and Second Respondents)

File Number(s):

CA 2012/396878

 Decision under appeal 

Citation:

[2012] NSWSC 1461

Date of Decision:

2012-11-23 00:00:00

Before:

Windeyer J

File Number(s):

2011/301407

Judgment

1. BASTEN JA: The applicants seek leave to appeal from an interlocutory judgment in the Equity Division delivered by Windeyer AJ on 27 November 2012, dismissing an application to set aside an ex parte injunction: Papas v Grave [2012] NSWSC 1461. The injunction under challenge was granted by Ward J on 13 June 2012. The two principal bases of challenge were:

(a) the failure of counsel appearing for the present respondents, (who had obtained the ex parte injunction) to make full disclosure of the facts and legal principles relevant to the application, and

(b) the seeking of interlocutory relief in the absence of any application for final relief.

1. Subject to what follows, I agree with the orders proposed by Emmett JA and with his reasons. The qualifications require some brief reference to the circumstances of the proceedings.

Background

1. Aspects of the factual background to the dispute were unclear. At the time of the proceedings before Ward J, the applicants and respondents were neighbours. The applicants wished to carry out work on their driveway which was, at least in part, a right of way over the respondents' land. The applicants sought development consent under the Environmental Planning and Assessment Act 1979 (NSW) with respect to the proposed work. They needed consent from the respondents for the development application. That consent was not forthcoming. The applicants accordingly commenced proceedings in the Equity Division seeking an order that the respondents give their consent.

1. While those proceedings were pending, the applicants undertook some work on the driveway. Whether it was work for which consent was required was not clear. Some of the work appears to have been carried out on the right of way, although it was not clear whether it was all within the right of way. The injunctive relief sought by the respondents was intended to stop the work, pending resolution of the proceedings in the Equity Division. The respondents asserted that the work constituted either an abuse of process or a contempt of court. Curiously, they did not contend that it constituted unlawful development in breach of the Environmental Planning and Assessment Act.

1. Following the grant of the injunction, the respondents brought proceedings for contempt, alleging that further work had been carried out, in breach of the injunction.

Leave to appeal

1. By way of response, the applicants brought proceedings before Windeyer AJ seeking dissolution of the injunction. At one stage it appears to have been assumed that success in having the injunction dissolved ab initio would remove the basis for the contempt charge. As explained by Emmett JA, and as accepted eventually by the applicants, that would not be so. However, if it could be established that the injunction should not have been granted, particularly if it were obtained by improper conduct on the part of the respondents, those circumstances would affect the orders which might be made if the contempt were established. Thus, the proceeding before Windeyer AJ and the present application for leave to appeal from that proceeding have utility. The basis on which the grant of injunctive relief is now challenged raises a question as to the regularity of the administration of justice. In these circumstances, it is appropriate to grant leave to appeal from what is accepted to be an interlocutory judgment: Supreme Court Act 1970 (NSW), s 101(2)(e).

1. In the course of the proceedings in this Court a question was raised as to whether leave were necessary, or whether an appeal lay of right because it was brought from a judgment or order of the Court in a Division "in any proceedings that relate to contempt (whether civil or criminal) of the Court ...": Supreme Court Act, s 101(5). Although the issue was originally raised by the Court, it was embraced by the applicants who submitted that no leave was required. They submitted that because the present issues could have been raised by way of defence in proceedings for contempt, their application to set aside the injunction, breach of which constituted the alleged contempt, was itself a proceeding "relating to" contempt.

1. Accepting that the concept of relationship may have a broad operation, in the present context, that is not self-evidently so. It is not the order or judgment which must "relate to" contempt, but the proceedings in which the order or judgment was made or delivered. By analogy, the validity of a warrant may be challenge collaterally in criminal proceedings or in separate proceedings for judicial review. It would be doubtful if the orders made in the judicial review proceedings were correctly characterised as orders that related to the criminal charges, for the purposes of appeal rights. The purpose of characterisation being to determine rights of appeal, it would be significant that the proceedings might have taken place in different courts. That is not so in the present case, although the proceedings will in fact probably be heard by different judges. Nevertheless, the relationship is to be characterised for the specific purpose of identifying a right of appeal. As the Court is unanimously of the view that, if required, leave should be granted, the question of whether leave be required need not be determined.

Evidence of counsel

1. The second matter concerns the evidence given by counsel who appeared before Ward J and who initially appeared for the respondents in the present proceedings. The circumstances which led to the evidence being proffered and the nature of the evidence are fully explained by Emmett JA. A proceeding by way of appeal, or an application to vary an interlocutory order, provide a context in which the conduct of an advocate in an earlier hearing may become the subject of dispute: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [35]. However, in order to know what evidence is admissible with respect to such conduct, it is necessary to identify the precise ground of challenge. If it is said that the advocate has misled the court by failing to identify a relevant legal principle or refer to a relevant authority, that will generally be established by reference to the transcript or, in the absence of transcript, by an affidavit from a person present in court, usually a solicitor. The advocate's reason for not referring to the principle or authority and indeed his or her state of knowledge at the relevant time, are not themselves facts in issue. Similarly, if it is alleged that material facts were not disclosed, that too will generally be capable of determination from the record. The fact in issue may be what was known (and what was not known) to the party seeking relief at the relevant time.

1. If a fact known to the party, or a relevant principle of law, was not put before the court when it should have been, the reason why that occurred will usually not be relevant. As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8], in relation to a criminal appeal:

"It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred."

1. By parity of reasoning, much of the evidence proffered by the respondents through an affidavit of their former counsel, as to what occurred before Ward J, was irrelevant. It was not objected to, but the fact that it was adduced in the present case should not lead to an assumption that it was either necessary or appropriate evidence.

Injunction not in support of final relief

1. Thirdly, there was a complaint that the respondents sought interlocutory relief (before Ward J) in circumstances where they sought no final relief. That complaint required a factual analysis which was not undertaken either in this Court or in the Court below. The substantive proceedings in the Equity Division, commenced by the applicants, assumed that development consent was necessary from the relevant consent authority under the Environmental Planning and Assessment Act for certain work to be undertaken on the carriageway. The respondents, whose consent to the development application was not forthcoming, were no doubt content to rely on that assumption. The underlying factual question which was not addressed was whether the action of the applicants in carrying out work without such consent involved an abandonment by them of the assumption underlying the substantive proceedings. If that were the correct analysis of the applicants' conduct, it might have been necessary for the respondents to commence proceedings for injunctive relief with respect to the work the subject of the development application, pending the grant of consent by the consent authority to the proposed development.

1. The alternative analysis of the applicants' conduct may have been that they thought (whether rightly or wrongly) that the work which they carried out prior to, and after, the injunction did not require development consent and was, therefore, not the subject matter of the substantive proceedings. If the latter analysis were correct, any injunctive relief sought by the respondents would have been directed to the correctness of the applicants' assumption that development consent was not required.

1. The respondents may reasonably have concluded that the issues raised by the conduct of the applicants would be addressed in the substantive proceedings which the applicants had already commenced, and that no further proceedings were required to be instituted by them; indeed, a proliferation of proceedings might merely increase costs and confusion. Thus, what they sought to protect was their entitlement to withhold consent, which would be nullified if the work were done before the substantive proceedings were determined. It is by no means clear why a defendant to a proceeding cannot seek interlocutory relief to maintain the status quo, being a right in the defendant conceded by the plaintiff in commencing the proceedings.

1. EMMETT JA: The applicants, Mr Peter Papas and Mrs Tami Papas, have applied for leave to appeal from an order made by a judge of the Equity Division on 27 November 2012. The application for leave to appeal was fixed for hearing on the basis that the appeal would be listed to proceed concurrently with the leave application, the appeal being subject to leave. As will become apparent, there is a question as to whether leave is required.

1. By the order of 27 November 2012, Windeyer J ordered that an amended notice of motion filed by Mr and Mrs Papas on 29 October 2012 (the Dissolution Motion) be dismissed with costs. By the Dissolution Motion, Mr and Mrs Papas sought the dissolution of an injunction granted on 13 June 2012 by Ward J, restraining them from carrying out certain construction work on property owned by the respondents to this application, Mr Warwick Grave and Mrs Julianne Grave. Mr and Mrs Papas claim that the injunction was obtained without full and frank disclosure of all relevant facts and law.

Background

1. Mr and Mrs Papas and Mr and Mrs Grave owned adjoining properties in Bay Street, Mosman. Mr and Mrs Papas owned the property known as 85-87 Bay Street (the dominant tenement) and Mr and Mrs Grave owned the property known as 83 Bay Street (the servient tenement). By memorandum of transfer dated 20 May 1938, a right of carriageway was created appurtenant to the dominant tenement affecting the servient tenement.

1. From some time in 2011, Mr and Mrs Papas began constructing a new house on the dominant tenement. They wished to carry out work on the servient tenement, consisting of regrading a hump in the driveway and smoothing out the transition of the driveway to Bay Street, by lowering certain of the levels. That work apparently required development approval under the Environmental Planning and Assessment Act 1979 (the Planning Act). They requested Mr and Mrs Grave to give their consent to a development application to Mosman Council (the Council) in relation to the proposed work. However, Mr and Mrs Grave declined to do so, on the ground that the proposed work, as they contended, went beyond what was reasonable for the exercise of the right of carriageway.

1. Accordingly, on 19 September 2011, Mr and Mrs Papas commenced proceedings in the Equity Division against Mr and Mrs Grave (the substantive proceedings). In the substantive proceedings, Mr and Mrs Papas claimed an order that Mr and Mrs Grave give their consent to a proposed development application to the Council.

1. On or shortly before 13 June 2012, while the substantive proceedings were still on foot, Mr and Mrs Papas caused excavation and other works to be undertaken on the servient tenement (the impugned work). The impugned work was undertaken without the consent of Mr and Mrs Grave and was commenced in their absence. It is not clear whether the impugned work was within the proposed development application that is the subject of the substantive proceedings. Nor is it clear whether the impugned work required development consent under the Planning Act.

1. When Mr and Mrs Grave discovered that the impugned work was under way, their solicitors sent a facsimile communication to the solicitors for Mr and Mrs Papas (the June Letter). The precise time at which the June Letter was sent is not clear. However, it appears that, at 12.59pm on 13 June 2012, the June Letter was also sent by email. In the June Letter, the solicitors asserts that, notwithstanding that the substantive proceedings remained unresolved, Mr and Mrs Papas had that day gone onto the servient tenement, including possibly onto parts not subject to the right of carriageway, and had carried out excavation and other works. The June Letter asserted that that conduct may well have been a contempt of court. It also went on to assert that, in any event, Mr and Mrs Papas had no right to undertake that work, or any work in the nature of the work for which the consent of Mr and Mrs Grave or the Council was required, or work that was otherwise "destructive" of the servient tenement.

1. The June Letter said that, unless by 2pm that day the impugned work had ceased and an undertaking was received that it would not be resumed without five business days' notice to Mr and Mrs Grave, an approach would be made to the duty judge at 3pm that day for injunctive relief. The June letter said that the matter would proceed ex parte if Mr and Mrs Papas chose not to appear.

1. At 2:19pm on 13 June 2012, the solicitors for Mr and Mrs Papas responded to the June Letter by email (the Email Response). The Email Response said that, having completed "the repair work to the driveway at the entrance section to [their] residence", Mr and Mrs Papas would not need to, and did not propose to, carry out any more work until the substantive proceedings were finalised. The Email Response said that the writer did not agree with the statement that Mr and Mrs Papas had no rights to undertake the work and that "the cases" clearly did not support that proposition.

1. At some time on the afternoon of 13 June 2012, Mr and Mrs Grave, through their counsel, Mr F G Kalyk, made an application to Ward J, sitting as duty judge in the Equity Division. Since the substance of the complaint in the prospective appeal is that there was a want of full and frank disclosure by Mr Kalyk, as counsel for Mr and Mrs Grave, it is necessary to set out in some detail the course of the hearing of the application before Ward J.

The Ex Parte Application

1. Mr Kalyk began by indicating that he was making an application for injunctive relief and that Mr and Mrs Papas had notice of the proposed application but had elected not to come to court. He explained that Mr and Mrs Papas had commenced the substantive proceedings seeking an order requiring Mr and Mrs Grave to give their consent, as owners, to a development application to do works on the servient tenement to accommodate the wishes of Mr and Mrs Papas. Mr Kalyk said that there was a factual contest between the parties as to whether the work that was required was reasonable or necessary to enable Mr and Mrs Papas to have the benefit of the right of carriageway.

1. Mr Kalyk referred to the fact that Mr and Mrs Papas had constructed a substantial new home on the dominant tenement, which had levels different from those in existence before that construction work was done. He said that, notwithstanding that the substantive proceedings had been going on for some time, Mr and Mrs Papas had simply gone onto the servient tenement and dug up a large part of the driveway, being the area within the right of carriageway. He said that Mr and Mrs Grave suspected that Mr and Mrs Papas had dug up part of the servient tenement outside the right of carriageway, although he conceded that his clients had not yet conducted a survey to confirm their suspicions.

1. Mr Kalyk referred to the Email Response, which he said did not proffer the undertaking that had been sought, but which also said that Mr and Mrs Papas had finished the work and that that was "an end of it". Mr Kalyk then proffered a notice of motion in the substantive proceedings, dated 13 June 2012 (the Injunction Motion), together with draft short minutes of the orders that he sought on behalf of Mr and Mrs Grave. The Injunction Motion claimed an order that Mr and Mrs Papas be restrained from undertaking any building or construction works in or on the servient tenement.

1. Mr Kalyk then explained to Ward J the location of the right of carriageway and tendered photographs of the servient tenement showing the location of the impugned work. Her Honour was also invited to read the June Letter and the Email Response.

1. Mr Kalyk then asked Ward J whether her Honour was aware of the authorities in relation to "self-help", when a plaintiff has elected to commence proceedings and thereafter undertakes to solve the problem himself or herself. He said that there were two authorities to which he would take her Honour. Ward J asked whether they were the ones that say that, once you choose to commence proceedings, you have to await the outcome of the proceedings and you do not go off and do something else. Mr Kalyk responded that her Honour was correct and that her Honour had "in that expression encompassed the juridical difficulty".

1. Mr Kalyk said that the juridical difficulty was that there was authority for the proposition that it is contempt to do so, but that there is a second school of thought that says that it might not be contempt but rather an abuse of the process of the court. He said that the authorities to which he wanted to take her Honour were High Court authorities, which indicated the former view, although he accepted that it was not the only view. Mr Kalyk said that "[t]hose are the principles". He said that the matter fell into the contempt category because substantial evidence had been adduced in the substantive proceedings by the parties, both as to the existing levels and as to the proposed levels after the work that Mr and Mrs Papas wished to carry out. Mr Kalyk said that that evidence was now gone, in so far as the pavement of the right of carriageway had gone. He said that the very basis upon which the substantive proceedings had been commenced had been removed while Mr and Mrs Grave were absent from their home.

1. Ward J then asked whether there was any suggestion that the impugned work was necessary repair work, because of a downpour or "something like that". Mr Kalyk responded that that was "an interesting question" and referred her Honour to the Email Response, which suggested that the impugned work was repair work. He then asserted that the pavement had been dug up and that dirt had been put in its place and that her Honour should infer from that that it could not possibly have been repair work. On the contrary, he said, a large section of exposed base course of the driveway had been opened up, which may itself cause structural difficulties. Mr Kalyk said that what had been dug up was all on the servient tenement, but that some of the land that had been dug up was not the subject of the right of carriageway. He submitted that there was evidence from which Ward J could infer that, unless restrained, Mr and Mrs Papas were simply going to continue, bit by bit, to achieve what they wanted to achieve, without having the Court determine the matter in issue in the substantive proceedings.

1. Ward J observed to Mr Kalyk that the orders proposed by him provided for the return of the notice of motion on 2 July 2012 before the duty judge, some two weeks and five days later. Mr Kalyk responded that that was so because, on the evidence of the Email Response, Mr and Mrs Papas had finished the work that they needed to do, so that, to some extent, Mr and Mrs Grave were in court on a false premise. He said that, from the perspective of Mr and Mrs Papas, there was no urgency. However, from the perspective of Mr and Mrs Grave, the view was taken that, in the absence of an order, they could not be comfortable that Mr and Mrs Papas would not change their minds. He said that the Email Response clearly permitted them to do so and that Mr and Mrs Grave wanted the opportunity to put on appropriate evidence as to the significant concerns that they had in relation to the structural effect of what had been done.

1. Significantly, Mr Kalyk then directed the attention of Ward J to the fact that, in his proposed orders, the usual undertaking as to damages was not proffered and said that that was not an omission. He said that the application was being made, not because Mr and Mrs Papas had done something before the commencement of the substantive proceedings, but rather because they had done something that would be established to be a contempt of court, and certainly an abuse of the Court's process. He said that, in those circumstances, the Court itself has a very real interest in ensuring that that conduct did not continue. Accordingly, he said, it was inappropriate to impose upon Mr and Mrs Grave the risk of an undertaking as to damages.

1. Ward J pointed out that that would leave open the position that, if it were to be established that there was a basis for Mr and Mrs Papas to do what they were doing, there would be no undertaking as to damages. Mr Kalyk responded that it would only be for the two weeks until the matter came back before the Court on 2 July 2012, and that the Email Response indicated that they did not propose to do any work anyway. He said that, in order to address that question, the proposed orders provided for liberty to apply to vary the orders on one day's notice if required.

1. Ward J observed that it was only in exceptional or extraordinary circumstances that the Court would not require an undertaking as to damages as a condition of interlocutory injunctive relief. Mr Kalyk agreed that that was certainly the usual course. When her Honour indicated that the authorities suggest that the Court would not lightly waive the requirement, Mr Kalyk responded that he would not suggest that the appropriate principle were otherwise. He said that, in circumstances where it was glaringly obvious that Mr and Mrs Papas had taken the matter into their own hands, while the substantive proceedings were still on foot, such that there was contempt, it was an appropriate case not to require the undertaking as to damages. Her Honour responded that that might be a basis for seeking to be released from the undertaking in due course, if it were established that that was the case.

1. Mr Kalyk then took Ward J to the current form of the statement of claim in the substantive proceedings. Mr Kalyk told her Honour that Mr and Mrs Papas had filed evidence that there was a problem with the excavated area, in that their motor vehicle did not maintain contact with the roadway at all times. That was the basis upon which Mr and Mrs Papas alleged that the work was necessary and that they were entitled to the relief they sought. Mr Kalyk said that, in due course, the contest between the parties would be whether that was "just a veil" for what was the real issue, and that the real issue was the desire of Mr and Mrs Papas to change the levels to suit their new development. He said that there was another line of enquiry as to why that arose at all, but that he did not need to trouble Ward J about it at that stage.

1. Ward J then noted, for the record, that the allegation that had been made on behalf of Mr and Mrs Grave was that the impugned works amounted, if not to a contempt of court, then to an abuse of the Court's process, being works undertaken in the area of the right of carriageway, in respect of which Mr and Mrs Papas had commenced the substantive proceedings. Her Honour said that, in those circumstances, she would not require an undertaking as to damages but that, in so far as Mr and Mrs Papas would have liberty to apply to vary the orders on one day's notice, including any application for the provision of the usual undertaking as to damages, that issue could be re-agitated if Mr and Mrs Papas contended that there was a basis upon which the undertaking as to damages should have been proffered.

1. Ward J granted leave for Mr and Mrs Grave to file the Injunction Motion in Court and for it to be made returnable instanter. Her Honour then ordered that, until 5:00pm on 2 July 2012, Mr and Mrs Papas be restrained from undertaking any building or construction works in or on the servient tenement. Directions were given for Mr and Mrs Grave to serve any further evidence on which they wished to rely and for Mr and Mrs Papas to file any evidence in reply. Ward J also granted liberty to Mr and Mrs Papas to apply to vary the orders on one day's notice, including any application for the provision by Mr and Mrs Grave of the usual undertaking as to damages. The Injunction Motion was stood over to 10:00 am on 2 July 2012 before the duty judge.

After the Ex Parte Orders

1. Mr Papas and Mrs Papas made no application under the liberty to apply granted on 13 June 2012. Rather, when the Injunction Motion came before White J as duty judge, on 2 July 2012, Mr and Mrs Papas consented to the continuation of the injunction until the determination of the substantive proceedings. In addition, the directions for the filing of evidence in relation to the Injunction Motion were vacated.

1. However, on 13 August 2012, Mr and Mrs Grave filed a further notice of motion in the substantive proceedings (the Contempt Motion). By the Contempt Motion, Mr and Mrs Grave claimed an order that Mr Papas be found guilty of contempt and that he make restitution in respect of the damage caused to the servient tenement by reason of his contempt and by reason of trespass to the servient tenement. The statement of charge in the Contempt Motion itemised some 11 alleged separate instances of Mr Papas causing work to be carried out on the servient tenement, on 13, 14, 18, 19, 22, 26 and 28 June and 6 August 2012.

1. On 27 August 2012, Mr and Mrs Papas filed a notice of motion seeking an order "[t]hat the [o]rders of White J [sic] ... made on 13 June 2012 be dissolved ab initio". An amended notice of motion, being the Dissolution Motion, was filed on 29 October 2012, seeking an order that the orders made by Ward J on 13 June 2012 "be dissolved ab initio", and that Mr and Mrs Grave pay the costs of Mr and Mrs Papas of the Dissolution Motion on the indemnity basis.

The Decision of Windeyer J

1. Windeyer J heard the Dissolution Motion on 27 November 2012. Mr and Mrs Papas contended that, in making the ex parte application before Ward J, Mr and Mrs Grave had breached their obligation of full and frank disclosure in at least four respects, as follows:

• failure to apprise Ward J of cases that make it clear that work on the driveway on the servient tenement was authorised, a matter that was not pursued in the present application;
• failure to inform Ward J that the so-called conduct of Mr and Mrs Papas by way of self-help did not relate to the subject matter of the substantive proceedings;
• failure to outline to Ward J the correct principles concerning the giving of an undertaking as to damages; and
• failure to inform Ward J that Mr and Mrs Grave were making no claim for final relief.

1. In his reasons, given ex tempore, Windeyer J observed that Mr and Mrs Papas asserted that there had been a failure to disclose material matters to Ward J and a failure to take her Honour to the necessary principles of law, which, it was asserted, might have caused some doubt as to whether or not there was an abuse of process. His Honour noted that it had been put to her Honour that, once the substantive proceedings had been commenced by Mr and Mrs Papas seeking an order that Mr and Mrs Grave consent to the lodging of a development application, it was incumbent upon Mr and Mrs Papas to await the outcome of the substantive proceedings and not to take the matter into their own hands and carry out work for which the consent of Mr and Mrs Grave was sought in the substantive proceedings. His Honour observed that Ward J had had to decide whether there was a serious issue to be tried and the question was whether or not what was said to be non-disclosure of the legal principles could in any way be thought to have borne on the decision that her Honour made.

1. Windeyer J considered that there were several matters against Mr and Mrs Papas. First, notwithstanding the reservation of liberty to apply and the fact that the injunction was to expire on 2 July 2012, no application had been made to vary the orders made by Ward J. In addition, Mr and Mrs Papas had consented to the continuation of the injunction on 2 July 2012.

1. Windeyer J expressed the view that it was highly unusual to grant an interlocutory injunction without an undertaking as to damages and that the reasons put to Ward J for not requiring such an undertaking may not necessarily have been very cogent. Nevertheless, as his Honour observed, the simple fact was that the order had been made and, if Mr and Mrs Papas had wished to do anything about it, they had had plenty of opportunity to do so before the Contempt Motion was brought. His Honour noted that, while Ward J realised that it would be highly unusual not to require an undertaking as to damages, her Honour considered that the facts may have been within a particular class, namely, where there was an abuse of process by way of self-help. His Honour was not disposed to revisit that question.

1. Rather, Windeyer J said, where an injunction is granted without an undertaking as to damages, and a party wishes to complain about the absence of an undertaking, the ordinary means of doing so is to apply to the Court of Appeal. However, his Honour considered that it had not been necessary for Mr and Mrs Papas to follow that path because of the liberty to apply that had been reserved. His Honour considered that, in the circumstances, the proper procedure would have been for Mr and Mrs Papas to apply to the duty judge on the return day of the summons. Mr and Mrs Papas did not take up that opportunity.

1. Windeyer J observed that Mr and Mrs Papas were perfectly happy to allow the orders made ex parte to continue because they did not need to do any further work at that time. The Dissolution Motion had been filed only when Mr Papas was confronted with the Contempt Motion. Mr and Mrs Papas did not need to consent to the extension of the injunction on 2 July 2012. However, they did so. His Honour did not consider that sufficiently unusual circumstances had been established such that they should not be bound by their consent. Accordingly, his Honour dismissed the Dissolution Motion.

The Appeal

1. In their draft notice of appeal, Mr and Mrs Papas assert that Windeyer J erred in law:

• in finding, in circumstances where Mr Kalyk expressly misstated the correct legal test, that the duty to make full and frank disclosure on an ex parte hearing was not breached;
• in failing to find that the failure of Mr Kalyk to disclose material matters on the ex parte hearing constituted a breach of duty that should have led to the dissolution of the interlocutory injunction;
• in finding that events after the grant of the interlocutory injunction were relevant to the question of whether the relevant duty had been breached and whether the injunction ought to be dissolved for want of full and proper disclosure; and
• in failing to find that the submissions made to Ward J concerning the requirement for the usual undertaking as to damages constituted a breach of the duty of full and frank disclosure.

1. Several issues are raised by the present proceedings before the Court of Appeal. They may be summarised as follows:

• whether leave to appeal is required and, if so, whether leave to appeal should be granted;
• whether there was a failure by Mr Kalyk to discharge the duty of full and frank disclosure in the course of the application to Ward J;
• if so, whether that failure would warrant an order that the injunction be dissolved;
• assuming such an order should be made, whether it should be made ab initio, with the consequence that, for the purposes of the Contempt Motion, it might be taken not to have been made; and
• whether the conduct of Mr and Mrs Papas, after they were notified of the orders made by Ward J and prior to the filing of the Contempt Motion, is relevant to the grant of any relief on the Dissolution Motion.

1. The orders made by Ward J are impugned only on the basis of a want of full and frank disclosure at the time when the application was made for interlocutory relief. That is to say, no question has been raised as to whether Ward J erred in acceding to the submission made by Mr Kalyk that interlocutory relief should be granted without requiring an undertaking as to damages. That question could have been raised either by an application to vary the order or by an application for leave to appeal from the orders made by Ward J. No such application has been made.

1. Mr Kalyk appeared for Mr and Mrs Grave on the hearing of the appeal. In the course of the argument of the appeal, it became apparent that the contentions advanced on behalf of Mr and Mrs Papas placed Mr Kalyk in a somewhat embarrassing position. He was, in effect, required to defend his own conduct before Ward J. Mr Kalyk's difficulty is recognised by r 95 of the NSW Barristers' Rules, which provides that a barrister must refuse to accept or retain a brief or instructions to appear before a court if, amongst other things:

• the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case; or
• the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case.

However, under r 96 of the NSW Barristers' Rules, a barrister need not refuse or return a brief on the ground that his own personal professional conduct may be attacked in the case if the barrister believes on reasonable grounds that allegations involving the barrister have been raised in order to prevent the barrister from accepting the brief and the allegations can be met without materially diminishing the barrister's disinterestedness.

1. In the light of Mr Kalyk's position, Mr and Mr Grave were given leave, if they were so advised, to make further submissions concerning Mr Kalyk's part in the conduct of the case. That leave was taken up and, in addition, an affidavit sworn by Mr Kalyk was filed. Pursuant to leave given by the Court, the parties made further submissions concerning Mr Kalyk's position and in relation to the question of whether or not leave to appeal from the orders of Windeyer J was required. The matter was then relisted for further oral argument, at which time Mr BW Rayment QC appeared for Mr and Mrs Grave. At that stage, Mr Kalyk's affidavit was read without objection.

1. In his affidavit, Mr Kalyk relevantly said as follows:

• He is familiar with the obligations of counsel to the court, both as to candour, including as to the duty to make disclosure of relevant matters on ex parte applications, and generally as to the requirement to assist the court in respect of matters.
• He endeavoured to comply with those obligations in all respects when appearing before Ward J on 13 June 2012 and, in particular, did not intentionally mislead the court in any respect.

1. Mr Kalyk said that he intended to put, and believed that he did put, the application to Ward J on the basis that:

• There was a dispute between the parties as to the entitlement of Mr and Mrs Papas to undertake works on the servient tenement.
• The entitlement of Mr and Mrs and Papas depended upon whether works proposed to be undertaken, for which the consent of the Council was sought, were reasonably necessary to permit them to enjoy the benefit of the right of carriageway.
• There was no dispute between the parties that, if those works were reasonably necessary, Mr and Mrs Grave would be obliged to sign the proposed application for development consent as owners of the servient tenement.

1. Mr Kalyk also said that he believed, both at the time of the application and at the time of swearing his affidavit, that Ward J understood the issues in the substantive proceedings to be as just stated. He also said that he believed, at the time of swearing the affidavit, that Ward J, in making the impugned orders, was under no misapprehension as to the central issue in the substantive proceedings or about any of the legal principles relevant to the application for ex parte relief.

1. Mr Kalyk said that he took two volumes of the Commonwealth Law Reports to court with him on the hearing of the ex parte application, but cannot now recall what those authorities were. However, as a consequence of his endeavours to reconstruct the line of research that he undertook, he believes that it is possible that the authorities to which he intended to refer were Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460 and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. It is not clear that those cases were relevant with respect to the principle relied on before Ward J that is presently in issue, which may explain his difficulty in knowing what cases he had in mind at the time.

1. Mr Kalyk was not required for cross-examination and, in circumstances where his affidavit was admitted without objection, the Court should conclude that his personal integrity, in making the application to Ward J, should not be impugned. On the other hand, it would have been preferable for him not to have accepted instructions to appear before Windeyer J and the Court of Appeal, when it was clear that allegations of want of full and frank disclosure on his part were to be ventilated.

Leave to Appeal

1. The order made by Ward J, which was extended by White J on 2 July 2012, was clearly an interlocutory order. Ordinarily, therefore, the effect of s 101(2)(e) of the Supreme Court Act1970 (the Supreme Court Act) would be that an appeal would not lie to the Court of Appeal, except by leave of the Court of Appeal. However, s 101(5) of the Supreme Court Act provides that an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt of the Court.

1. Mr and Mrs Papas contended that both the Contempt Motion and the Dissolution Motion are proceedings that relate to contempt of the Court. They say that, having regard to the relationship between the Contempt Motion and the Dissolution Motion, the Dissolution Motion relates to contempt for the purpose of s 101(5). Thus, Mr and Mrs Papas say, the alleged contempt is grounded in the order made by Ward J on 13 June 2012 and it is that order that they seek to have set aside by the Dissolution Motion. They say that there is a real and substantial association or connection between the subject matters of the two motions, in that the Dissolution Motion would not have been brought if the Contempt Motion had not been brought.

1. Thus, Mr and Mrs Papas argue, there is an unbroken link between the order made by Ward J, the Contempt Motion and the Dissolution Motion, in that each depends on the other. Even if that association or connection not be direct, there is, they say, at least an indirect association or connection, which is sufficient to conclude that the Dissolution Motion relates to contempt. They say that the association is demonstrated by the fact that the Dissolution Motion could have been heard at the same time as the Contempt Motion or as a preliminary question on that Motion. They contend that, in substance, the Dissolution Motion is brought by way of defence to the Contempt Motion.

1. The language of s 101(5) is broad, in the sense that it covers proceedings that relate to contempt and not merely proceedings for contempt. The Contempt Motion was filed in the substantive proceedings. Under order 55, r 6.1 of the Supreme Court Rules1970, where contempt is committed in connection with proceedings in the Court, an application for punishment of the contempt must be made by motion on notice in the proceedings. Hence, the Contempt Motion was properly brought in the substantive proceedings. However, in one sense, the question of whether Mr Papas committed a contempt, by reason of his engaging in conduct that contravened the order made by Ward J, as distinct from any prior self-help conduct that may or may not have been a prior and different contempt, has nothing to do with the real issue of the substantive proceedings, being the question of whether Mr and Mrs Grave should be ordered by the Court to consent to the development application to the Council in connection with the proposed works on the servient tenement.

1. It is true that the Dissolution Motion is directly concerned with an order made in the substantive proceedings. Further, it is clear enough that, but for the Contempt Motion, Mr and Mrs Papas would have been content for the order of Ward J made on 13 June 2012 to stand. Indeed, they consented to the order being extended. On the other hand, the Contempt Motion raised a new and discrete lis, separate and distinct from the lis that is the subject of the substantive proceedings. The mere fact that the bringing of the Contempt Motion by Mr and Mrs Grave is the reason for Mr and Mrs Papas bringing the Dissolution Motion does not necessarily mean that the Dissolution Motion relates to contempt.

1. There is another basis upon which the Dissolution Motion could possibly be said to be proceedings that relate to contempt. As indicated above, the basis upon which Mr and Mrs Grave moved on 13 June 2012 for the grant of an injunction was that, having regard to the existence of the substantive proceedings, the conduct of Mr and Mrs Papas constituted contempt of court. One of the bases upon which Ward J was asked to grant the injunction was to restrain further contempt. On that basis, it may be arguable that the Injunction Motion constituted proceedings that relate to contempt. Since the Dissolution Motion sought the dissolution of the order made on the Injunction Motion, it would follow, on that hypothesis, that the Dissolution Motion would also be proceedings that relate to contempt. That is to say, the Injunction Motion was to restrain any further commission of contempt.

1. The alleged contempt intended to be restrained by the injunction of 13 June 2012, of course, is quite different from the later alleged contempt that is the subject of the Contempt Motion, namely, engaging in conduct that was enjoined by the order of 13 June 2012. Accordingly, it may be that the Dissolution Motion falls within s 101(5) of the Supreme Court Act and that Mr and Mrs Papas therefore have an appeal as of right from the order of Windeyer J dismissing the Dissolution Motion. However, as leave should be granted in any event, it is not necessary to reach a firm conclusion on that question.

Whether the Injunction Should Be Dissolved

1. Mr and Mrs Papas, through their counsel, frankly acknowledge that the motivation for bringing the Dissolution Motion is to place Mr Papas in a better position to resist the charge of contempt brought by the Contempt Motion. It appears to have been common ground before Windeyer J that, if the relief claimed by Mr and Mrs Papas in the Dissolution Motion were granted, namely, that the injunction be dissolved ab initio, the Contempt Motion would fall away. In their written submissions to the Court of Appeal, Mr and Mrs Grave accepted that the Contempt Motion must fall away if the Court orders that the injunction granted by Ward J on 13 June 2012 were to be dissolved ab initio.

1. However, on the hearing of the application for leave to appeal, Mr Kalyk resiled from that position to some extent. The final position of Mr and Mrs Grave appears to be that the Contempt Motion would fall away if the effect of any order made by the Court of Appeal were that the injunction should be deemed never to have been made. Mr and Mrs Grave dispute that the Court of Appeal should make such an order.

1. Senior Counsel for Mr and Mrs Papas initially submitted that the Court of Appeal should make an order that, upon the orders made by Ward J being set aside ab initio, there would be a complete answer to the charge of contempt made under the Contempt Motion. At the further hearing, Mr and Mrs Papas resiled from that position. They now accept that, even if the orders made by Ward J were to be set aside, that will not be a complete answer to the charge of contempt. They accept that the possibility that the order should not have been made can only go to the question of the punishment to be imposed, if the contempt were to be proved.

1. The Supreme Court of New South Wales is a superior court of record. As such, the orders of the Court are valid until set aside, even if the orders were made in excess of jurisdiction. The roots of that principle lie in the nature of judicial power (see State of New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144 at [28] and [32]) (Kable).

1. Unless the orders of a superior court of record be treated as valid until set aside, the exercise of judicial power can yield no adjudication of rights and liabilities to which immediate effect can be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Individuals affected by such an order would have to choose whether to comply with the order or to disobey the order and run the risk of contempt of court. A decision to disobey such an order would require the individual to predict whether the order would be set aside on appeal or review (Kable at [39]-[40]). Even an order of a superior court of record made under invalid legislation is valid until set aside. It is not void ab initio (Kable at [41]). A fortiori, an order by the Supreme Court, even if made erroneously, but within jurisdiction, is valid until set aside.

1. However, the fact that a party disputes the validity of an order may be material for the Court, in the exercise of its discretion to grant relief in relation to disobedience, to consider the circumstances under which the order was made. When considering punishment for contempt, the Court would have regard to all the circumstances of the case, including the circumstances under which an order that has been disobeyed was made. It would be dangerous to permit a party, or a party's legal advisors, to judge whether an order was null and void or whether it was regular or irregular. Rather, the party must go to court and not take it upon itself to determine such a question (see Hadkinson v Hadkinson [1952] P 285 at 288; Jackson v Stirling Industries Ltd (1987) 162 CLR at 619-620). However, if one party induces the Court to make, per incuriam, an order that is contrary to natural justice, the Court would not necessarily punish a failure to comply with the order, but may give the other party the opportunity to apply to have the order set aside (Rubie v Rubie [1911] HCA 71; (1911) 13 CLR 350 at 353-354).

Full and Frank Disclosure

1. A party asking, ex parte, for an injunction is under a duty to bring to the notice of the court all facts material to the determination of the entitlement of that party to the injunction, including facts adverse to that party. It is no excuse for that party to say that it was not aware of the importance of the facts. Utmost good faith is required of a party seeking to induce the court to act in the absence of another party. Thus, a party seeking ex parte relief will fail in its obligation to the court unless it bring forward all the material facts that the absent party would presumably have brought forward in opposing the application. The moving party must state its case fully and fairly and disclose the entirety of the facts relevant to the case. The party moving the court must give the court a faithful statement of its case (Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682).

1. Despite being in a relationship of confidence with a lay client, the first duty of a barrister is to the court in which the barrister appears, rather than to his or her client. Where the respective duties conflict, the duty to the court is paramount. That duty imposes obligations on the barrister with which the barrister must comply, even though to do so may be contrary to the interests or wishes of the barrister's client. A barrister must not deceive the court or abuse the process of the court by preparing or arguing an unmeritorious application. Further, a barrister owes a duty to the court to inform the court of legal authorities that bear one way or the other upon the matters under debate. That duty applies irrespective of whether or not the particular authority assists the party who is aware of it (D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [111]- [112]).

1. Mr and Mrs Papas contended that Mr Kalyk failed to disclose the correct legal position, and expressly misstated the correct legal position, on whether a person who undertakes self-help after proceedings for the same relief have been commenced necessarily commits contempt of court or an abuse of process. They also contended that Mr Kalyk misstated the law as to the need for the usual undertaking as to damages. Finally, they contended that Mr Kalyk failed to disclose to Ward J that there was no claim for final relief in support of which the interlocutory injunction was sought.

Self-Help

1. It is a contempt of court to engage in conduct designed to interfere with the fair trial of a particular case that is proceeding in the court (Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343 at 360). Conduct that would have the effect of rendering nugatory the relief claimed in the proceedings, for example by destroying the subject matter of the proceedings, may be contempt. There is also some authority for the proposition that it may be an abuse of process or a contempt for a party who seeks relief in a court proceedings to attempt to gain that relief in some other way, while the proceedings remain on foot (see McGregor v Henry [2006] NSWSC 368, at [67]-[73]). However, there will be no contempt if the conduct complained of was not intended, and was not likely, to interfere with or obstruct the fair administration of justice. Moreover, there is no principle that the commencement of proceedings operates as an order that the defendant must not do anything that would adversely affect the subject matter of the proceedings (see Catalfamo v Hersfield Holdings Ltd at 363).

1. There is apparently an issue between the parties as to whether or not the impugned work, and any work allegedly carried out after the injunction, was in fact work that was the subject of the proposed development application. That question would have had to be determined if Mr and Mrs Papas had taken up the liberty to apply to vary the terms of the injunction, or if they had resisted the extension of the injunction on 2 July 2012. Mr and Mrs Papas have not suggested that it was unarguable that the impugned work was within the proposed development application. For present purposes, therefore, it must be assumed that there was at least a serious question as to whether or not the impugned work was within the proposed development application.

1. In the course of the application to Ward J, Mr Kalyk contended that the impugned work was the very work for which development approval was intended to be obtained by the proposed development application. However, it was not suggested to Ward J that the impugned work involved a contravention of the Planning Act. More significantly, there was apparently a dispute in the substantive proceedings as to the relevant levels of the driveway on the servient tenement. Mr and Mrs Grave were alleging that the work covered by the proposed development application would change the levels of the driveway. Although the precise basis of the claim for injunctive relief was not entirely clear, it seems that the contention was advanced that the impugned work would destroy evidence as to matters that were likely to be in dispute at the final hearing of the substantive proceedings.

1. The submission advanced on behalf of Mr and Mrs Grave was that the actions of Mr and Mrs Papas, in carrying out the impugned work, arguably constituted an abuse of process or contempt. It may be that full argument would show that submission to be flawed, but it is not entirely without support in the authorities. In putting the submission, Mr Kalyk cannot be said to have misled the Court.

1. The extent of disclosure that is required in making an ex parte application must depend to some extent on the circumstances in which the application has been made. Where an urgent application is made to prevent imminent conduct, the opportunity for close examination of the relevant legal principles may be limited. While the urgency would not excuse a failure to disclose material facts and circumstances, it may well be a justification for no more than a very limited statement of the legal principles upon which the application is based. I do not consider that in this case there was any failure to discharge the duty of full and frank disclosure as to the legal principles upon which the application for an injunction was based.

Undertaking as to Damages

1. There is much to be said for the view that, when making an ex parte application for an interim injunction, counsel should raise with the judge, in order to avoid the danger of oversight, the question of whether an undertaking as to damages be appropriate, even though counsel may wish to contend that, for some good reason, the undertaking should not be given (see National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 560). In the present case, Mr Kalyk made clear that the failure to proffer an undertaking as to damages was not an oversight. It was a positive submission that there were special circumstances that justified the Court in granting an injunction without requiring Mr and Mrs Grave to give an undertaking as to damages.

1. The proposition advanced by Mr Kalyk was that the basis upon which the injunction was sought was to protect the integrity of the processes of the Court. There may be a rational basis for the contention that, where the relief claimed in an ex parte application is designed to prevent interference with the administration of justice, it is appropriate to relieve the moving party of the usual requirement to give an undertaking as to damages that might flow from the grant of relief. While the correctness of that proposition may be doubted, it is at least arguable. The question is whether the submissions made to Ward J were misleading.

1. A party is entitled to make a submission that the circumstances are such that the party should be relieved of the usual requirement for the giving of an undertaking. Mr and Mrs Papas have not referred to any authority that indicates that the proposition advanced by Mr Kalyk could not possibly be correct. The submission was made in circumstances where Mr and Mrs Papas had stated that they did not intend to carry out any more work at that stage. Her Honour accepted the submission, but on terms that Mr and Mrs Papas would have liberty to apply on short notice if they were concerned with the absence of an undertaking as to damages. Rightly or wrongly, her Honour accepted the submission, but did so conscious that it was a departure from usual practice. I do not consider that there was a failure to make full and frank disclosure of the law concerning undertakings as to damages.

1. Whether Ward J erred, when granting the injunction on the basis that the alleged conduct constituted contempt of court or an abuse of process, in not requiring the usual undertaking as to damages, is not the question before this Court. That matter could have been raised by an appeal from the order made on 13 June 2012. Mr and Mrs Papas made no application to vary the order and did not file a notice of appeal, or an application for leave to appeal, in relation to the order.

No Claim for Final Relief

1. The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at a final hearing. Further, a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought. A plaintiff seeking an interlocutory injunction must show at least a probability that he or she will succeed in establishing his or her entitlement to the final relief claimed (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [9]-[11]) (Lenah Game Meats). Thus, the claim for final relief will usually inform the question of whether interlocutory relief is warranted.

1. However, an order such as that claimed by Mr and Mrs Grave may be in a different category from the usual interlocutory relief in aid of final relief. The order granted by Ward J was sought on the basis that it was intended to preserve the integrity of the processes of the Court. On one view, it was more in the nature of an order such as an anti-suit injunction or freezing order than an interlocutory order designed to maintain the status quo pending the final resolution of a dispute between the parties (see Lenah Game Meats at [12]). In so far as the Injunction Motion sought orders to preserve the integrity of the Court's processes, there may be a basis for concluding that there was no need for a claim for any final relief.

1. The Injunction Motion was filed and dealt with as a matter of urgency. Any lack of a claim for final relief, if that were a deficiency, may have been remedied, had there been no consent to the extension of the injunction on 2 July 2012. I do not consider that there was a breach of any duty of full and frank disclosure on the part of Mr Kalyk in failing to draw the attention of Ward J to the fact that, at that stage, there was no specific claim for final relief in aid of which the interlocutory injunction was sought.

1. On 11 October 2012, Mr and Mrs Grave filed a cross-claim in the substantive proceedings. By the cross-claim, they claimed damages against Mr and Mrs Papas, including aggravated damages. Amongst other allegations made in the cross-claim, Mr and Mrs Grave alleged that Mr and Mrs Papas, by their contractors and workmen, had entered upon the servient tenement and undertaken works to the servient tenement, without the consent of Mr and Mrs Grave, and thereby committed trespass. The cross-claim alleged that those works included the works that are the subject of the substantive proceedings and that carrying out the works constituted an abuse of the processes of the Court. Curiously, no allegation of contempt of court was made in the cross-claim. That is so, notwithstanding that the contention advanced by Mr Kalyk to Ward J was that, while there were two views as to whether the conduct being complained of constituted contempt or an abuse of process, the primary contention was that the conduct fell into the category of contempt. The absence of any reference to contempt in the cross-claim might suggest abandonment of contempt as a basis for the injunction sought and obtained on 13 June 2012.

Events after the Grant of the Injunction

1. Mr and Mrs Papas complain that Windeyer J erred in finding that events after the grant of the injunction ex parte on 13 June 2012 were relevant to the question of whether the injunction ought to be dissolved for want of full and frank disclosure. Windeyer J considered that the conduct of Mr and Mrs Papas, after they learnt of the order of 13 June 2012, militated against the exercise of any discretion in their favour. They were given liberty to apply to vary the order on one day's notice, specifically because there was no undertaking as to damages. Further, his Honour found, Mr and Mrs Papas were perfectly happy to allow the orders to continue, because they did not need to do any further work at the time and they had not, at that stage, been confronted with the Contempt Motion. They did not need to consent to the continuation of the injunction on 2 July 2012. His Honour considered that, unless there were very unusual circumstances, Mr and Mrs Papas should be bound by their consent. His Honour held that no such circumstances had been shown to exist.

1. While I do not consider that there was a failure on the part of Mr Kalyk to discharge the duty of full and frank disclosure in making the application to Ward J, it is doubtful whether the order ought to have been made without requiring the usual undertaking as to damages. However, Mr and Mrs Papas were content for the order to remain on foot. They did not take up the liberty to apply and indeed consented to the extension of the injunction.

1. In any event, the conduct of Mr and Mrs Papas after they became aware of the injunction ordered on 13 June 2012 is relevant to the exercise of discretion in dealing with the application to dissolve the injunction. If the actions of Mr Papas, after he received notice of the injunction, did not contravene the injunction, he will have a good answer to the charge of contempt. On the other hand, if his actions were undertaken in contravention of the order made by Ward J, it is difficult to see why the Court should lend its assistance to non-compliance with its orders, even if the orders should not have been made in the first place. If the claims made against him were justified, which has not yet been determined, Mr Papas was content to allow the orders to stand and, at the same time, engage in the conduct contravening the orders. Windeyer J did not err in the exercise of his discretion in the circumstances.

Conclusion

1. Mr and Mrs Papas no longer suggest that an order purporting to set aside ab initio the order made by Ward J would have the consequence that Mr Papas did not disobey the order. Nevertheless, because the relief sought has utility with respect to the possible punishment if contempt be established, and because the challenge raises an important issue with respect to the administration of justice, if leave be required it should be granted.

1. In all of the circumstances, I would not order that the injunction granted by order of 13 June 2012 be dissolved. Mr and Mrs Papas have filed a draft notice of appeal in connection with the summons seeking leave to appeal. The appropriate course is to grant leave to appeal, to the extent that leave be required, and to direct that, within seven days, Mr and Mrs Papas file a notice of appeal in the form of the draft contained in the application book. That appeal should be dismissed. Mr and Mrs Papas should pay Mr and Mrs Graves' costs in this Court.

1. SACKVILLE AJA: I agree with the orders proposed by Emmett JA and with his Honour's reasons. Like Emmett JA, I would prefer not to express a final view as to whether Mr and Mrs Papas are entitled to appeal as of right. If leave to appeal is required, for the reasons given by Emmett and Basten JJA, I would grant leave.

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Decision last updated: 23 September 2013