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 correctnessLegislation 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…
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- AGLC
- Papas v Grave [2013] NSWCA 308
- Case
- [2013] NSWCA 308
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the original ex parte injunction was validly granted, given the alleged breach of disclosure obligations by the moving party and the absence of a claim for final relief. Further, the court had to determine whether a superior court's orders could be dissolved retrospectively, and whether failure to comply with such orders constituted contempt irrespective of their ultimate correctness. The court also considered whether the proceedings related to contempt under s 101(5) of the Supreme Court Act 1970, which would obviate the need for leave to appeal.
The Court of Appeal reasoned that orders of a superior court of record are valid until set aside. It held that such orders could not be dissolved ab initio, and that failure to comply with an order, even if later found to be erroneous, constituted contempt. The court found that the applicants' consent to the continuation of the injunction did not render the original grant of the injunction irrelevant to the dissolution motion. Consequently, the appeal was dismissed.
Orders
Orders of the court
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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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