Parisi v Nigro

[2006] NSWCA 121

New South Wales

Court of Appeal

CITATION:	Filippo Parisi & Anor v Antonio Nigro & Ors [2006] NSWCA 121
HEARING DATE(S):	2 May 2006
JUDGMENT DATE:	16 May 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 19; Basten JA at 20
EX TEMPORE JUDGMENT DATE:	05/02/2006
DECISION:	1. The notice of motion filed 26 April 2006 is dismissed; 2. The appeal is dismissed; 3. The appellants are to pay the respondents costs of the appeal on a party/party basis up to and including 26 April 2006 and thereafter costs are to be paid on an indemnity basis, including costs of today on the basis of a brief fee as if this matter had proceeded to a hearing of the appeal.
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Nigro v Parisi [2004] NSWSC 1117
PARTIES:	Filippo Parisi (First Appellant) Domenica Rosa Parisi (Second Appellant) Antonio Nigro (First Respondent) Maria Incoronata Nigro (Second Respondent) Vincenzo Pirrello (Third Respondent) Carmela Pirrello (Fouth Respondent)
FILE NUMBER(S):	CA CA 40483/05
COUNSEL:	B Washington (Appellants) MBJ Lee (Respondents)
SOLICITORS:	HAL Lawyers (Appellants) Levitt Robinson Solicitors (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	5245/02
LOWER COURT JUDICIAL OFFICER:	Barrett J
LOWER COURT DATE OF DECISION:	12/10/2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Nigro v Parisi [2004] NSWSC 1177

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CA 40483/05

BEAZLEY JA
IPP JA
BASTEN JA

Tuesday 2 May 2006

FILLIPO PARISI & ANOR v ANTONIO NIGRO & ORS

Judgment

1 BEAZLEY JA: On 26 April 2006 the appellants filed a notice of motion in which they sought an order inter alia that the hearing of appeal matter CA 40483 of 2005, which was set down for today, be vacated.

2 The purpose of seeking the vacation of the hearing date was to allow new proceedings to be commenced in the Equity Division seeking to set aside the judgment in respect of which the appeal was brought, being the judgment of Barrett J, given on 10 December 2004 (Nigro v Parisi [2004] NSWSC 1117), on the basis that it had been procured or contaminated by the fraud of the third respondent, Mr Pirello.

3 A draft statement of claim had been prepared in which it had been alleged inter alia that a report of a robbery by the third respondent to police on 12 September 2004, two days before the trial in the matter, was false and had been deliberately and knowingly made for the purpose of Mr Pirello fraudulently, wrongfully and falsely avoiding having to give evidence at the trial.

4 As it turned out, at the trial, Mr Pirello did not give oral evidence, nor was his affidavit read. A medical certificate was presented to the Court indicating that Mr Pirello was suffering from a post-traumatic stress disorder with associated panic attacks as a reaction to the alleged robbery and that he was, as a consequence, too traumatised to attend Court for the purposes of giving evidence in the proceedings. Having regard to that evidence, Barrett J refused to draw a Jones v Dunkel inference against Mr Pirello’s failure to attend for cross-examination: Jones v Dunkel (1959) 101 CLR 298.

5 The state of the evidence available to the appellants’ solicitors at the time that they filed the notice of motion on 26 April 2006 was a report of an investigator, Mr King, who stated, amongst other things, that from his experience as a criminal investigator and on account of the matters that he had ascertained during the course of an enquiry that he had undertaken into the alleged robbery, it appeared highly unlikely that that robbery ever took place in the manner alleged, or that if it did, it was not bona fide. The report was provided to the appellants’ solicitors at about the date of its preparation on 4 April 2006.

6 Having received Mr King’s report the appellants’ solicitors apparently made contact with the investigating police in the matter and, in particular, with a Detective Sergeant Thierjung of Balmain police who was the supervisor of the police constable who undertook the police investigation into the alleged robbery.

7 On 19 April 2006 Mr Hall, a solicitor who has had the conduct of the matter, spoke to Detective Sergeant Thierjung who informed Mr Hall that the case had been re-opened, but that the further investigation was completed and the case was closed.

8 Detective Sergeant Thierjung further expressed an opinion that the case was a “hard one to crack to show that the robbery was false and did not happen”. He said that, “[there’s] no doubt what he’s done is a good trick to avoid being cross-examined”. He also said that he tended to agree that what had been done was to avoid the third respondent being cross-examined, but that proving the robbery did not happen would be “a hard one”. He further informed Mr Hall that a report had been prepared and that access to it could be sought through one Superintendent Cox.

9 The Court has been informed that following the discussion with Detective Sergeant Thierjung, attempts were made to obtain a copy of such report from Superintendent Cox, but that as time was running out in the sense that the appeal was due to be heard on 2 May 2006, the appellants’ solicitors considered that something had to be done. The “something”, as it turned out, was the filing of the notice of motion to which I have referred, the preparation of a draft statement of claim which it was said was going to be moved upon in the Equity Division on 1 May 2006 and in which the allegations of actual fraud were to be made.

10 On 1 May 2006, however, the solicitors for the appellants received documentation from the New South Wales Police Service in which the Police Service made a clear statement that there was no evidence to suggest that the report made by the third respondent as to the occurrence of the robbery was false and misleading or that it never occurred. The investigating police officer also had expressed the view in her report that she had accepted the third respondent’s report of the robbery as one of “legitimacy” and she had no evidence to prove otherwise.

11 Upon receipt of that report from the New South Wales Police Service the solicitors for the appellants acted immediately by informing the solicitors for the respondents that they were not proceeding with the appeal and, indeed, were not proceeding with any action whatsoever in relation to the matter.

12 The solicitor who had conduct of the matter, Mr Hall, set these matters out in his affidavit sworn 1 May 2006. It is appropriate that I quote from paragraph 16 of that affidavit in which he said:

“By way of explanation as to this matter I respectfully contend that the reasons for the delay may be attributed to the fact that our firm was not the solicitors on the record who appeared in the first instance trial proceedings and, further, that until 1 May 2006 at approximately 11.23am our firm was proceeding on the basis of what we understood to be material properly the subject of the Court’s attention which went to the possibility that the judgment in the Court below was contaminated by fraud.”

13 He also stated in his affidavit that as soon as his firm received appropriate material suggesting that that was not the case they advised the solicitor for the respondents.

14 Whilst the Court appreciates the frankness with which Mr Hall has explained those matters in his affidavit, the fact is that there was never sufficient material upon which to make the very serious allegations which were made and which were the cause of filing the notice of motion and seeking to have the appeal vacated.

15 In those circumstances the respondents have made an application which, in its final form, was that the respondents have the costs of the appeal up to and including 26 April 2006 on a party/party basis, but thereafter that the costs of the appeal be paid on an indemnity basis.

16 In my opinion the respondents have made out a case for indemnity costs on the basis sought. The rules as to alleging fraud are well known. They were not satisfied in this case. The allegations of fraud were never made on any proper basis and have caused unnecessary costs to be incurred.

17 Because as and from 26 April 2006 the costs of the respondents, both of the appeal and of the notice of motion, have been very much as one, the only order I would make is in relation to costs of the appeal and with those costs to include the costs of the notice of motion. That should have, I think, the proper effect that the costs incurred by the respondent from that date are appropriately and completely covered.

18 Accordingly I would make the following orders:

1. That the notice of motion filed 26 April 2006 be dismissed;

2. That the appeal be dismissed; and

3. That the appellant pay the respondents costs of the appeal on a party/party basis up to and including 26 April 2006 and that thereafter costs be paid on an indemnity basis, including costs of today on the basis of a brief fee as if this matter had proceeded to a hearing of the appeal.

19 IPP JA: I agree.

20 BASTEN JA: I also agree.

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