Environment Protection Authority v Vista Estate Pty Ltd
[2025] VSC 673
•31 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 03887
| ENVIRONMENT PROTECTION AUTHORITY | Plaintiff |
| - and - | |
| VISTA ESTATE PTY LTD (ACN 627 177 637) | First Defendant |
| - and - | |
| CAMERON STEWART GULL | Second Defendant |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July 2025 |
DATE OF RULING: | 31 October 2025 |
CASE MAY BE CITED AS: | Environment Protection Authority v Vista Estate Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 673 |
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PRACTICE AND PROCEDURE – Allegation of contempt by the Plaintiff against the Defendants’ use of documents discovered in the proceeding – Whether use of discovered documents likely to interfere or obstruct administration of justice – Breach of the Harman undertaking found – Contempt established – Apology given – Purge of contempt – Application for relief from Harman undertaking as an alternative defence – Application for retrospective release from the Harman undertaking was granted – Allegation of contempt by the Plaintiff against the Defendants for interfering with a witness – Whether Defendants’ conduct amounts to intimidation of a witness – Contempt not established on this basis.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; R v Taylor [1999] 3 VR 657; R v Witt (No 2) [2016] VSC 142; Hearne v Street (2008) 235 CLR 125; Saridas v Papuan Oil Search Limited [2025] NSWSC 481; PharmX Pty Ltd (in its capacity as trustee of PharmX Unit Trust) v Fred IT Group Pty Ltd (No 2) [2019] VSC 494; Yap v Lee (No 2) [2024] VSC 730; Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67; R v Silverstein [2020] VSCA 233; R v Wright (No 1) [1968] VR 164; Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 38.01, considered; Khoury v Kirwan (No 4) [2021] VSC 333, distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Sharpe | Environment Protection Authority |
| For the Defendants | Mr A Walker Ms C Van Proctor | Russell Kennedy |
HER HONOUR:
INTRODUCTION
By summons filed 28 April 2025, the Environment Protection Authority of Victoria (‘EPA’), the Plaintiff, sought punishment of Mr Gull, the Second Defendant, for his alleged contempt of Court (the ‘EPA’s summons’). The contempt charges are as follows:
(a) that the Second Defendant sent or caused to be sent email correspondence attaching or referring to documents discovered by the Plaintiff; and
(b) the correspondence and disclosure of discovered documents, the subject of the Harman undertaking,[1] was likely to, or tended to, interfere with, or obstruct, the due administration of justice by prejudicing or obstructing the fair hearing of the proceeding, by disparaging witnesses and/or intimidating witnesses with the threat of disciplinary proceedings.
[1]Harman v Secretary of State for the Home Department [1983] 1 AC 280 (‘Harman’).
(c) The Plaintiff sought orders:[2]
[2]Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 38.01.
(i) restraining the Second Defendant from engaging in the same or similar conduct as alleged; and
(ii) compelling the Second Defendant to provide to the Court all copies of correspondence to persons who are not involved in the substantive proceeding in which the Second Defendant has attached or referred to the Plaintiff’s discovered documents.
Separately, by summons filed 6 May 2025 and amended on 5 June 2025, the Defendants sought an order pursuant to section 27(3)(b) of the Civil Procedure Act 2010 (Vic), to the extent that it is required, releasing the Defendants from their obligation imposed under section 27(1) of the Civil Procedure Act 2010 (Vic) for the documents listed, for the purpose of making any complaint or enquiry in connection with or to the Plaintiff or the Ballarat City Council (‘the Defendants’ summons’). The documents being:
(a) documents discovered by the Plaintiff on 22 December 2023;[3] and
(b) documents discovered by the Plaintiff on 31 January 2025.[4]
[3]Being EPA.001.001.0090; EPA.001.001.0115; EPA.001.001.0354; EPA.001.001.0415; EPA.001.001.5209.
[4]Being Ms Kathy Reynolds documents 08, 24, 26, 30, 48, 50; Mr Mark Palmer documents 48 and 247.
BACKGROUND
The substantive proceeding concerns the EPA’s allegation that the Defendants breached their duties arising from the Environment Protection Act 2017 (Vic) (the ‘EP Act’), as a result of works undertaken by them or on their behalf on land at Hillview Road, Brown Hill (the ‘Premises’) between October 2021 and January 2022. The EPA alleges that the removal of the vegetation and topsoil caused pollution through stormwater run‑off from the land, which ran into the upper reaches of the Yarrowee River near Ballarat.
During the course of the proceeding, it is alleged that in March 2025, the Second Defendant used documents that the Plaintiff states were ‘the subject of the Harman undertaking’ by sending three emails attaching or referring to those documents which it alleges were ‘likely to, or tended to, interfere with, or obstruct the due administration of justice’ by ‘disparaging witnesses and/or intimidating witnesses with the threat of disciplinary proceedings’.
The documents which the Plaintiff contends were subject to the undertaking comprise of (with one exception) email communications between the Plaintiff and the Ballarat City Council (‘Council’). These documents were already in the possession of the Plaintiff, and all but one in the possession of the Council. The one exception being an email by the Plaintiff recording a discussion with the Council (‘Plaintiff email’).
The alleged contempt charges are as follows:
(a) On 19 March 2025, the Second Defendant caused an email to be sent to two officers of the Council, the Chief Executive Officer, Mr Evan King, and Director, Ms Natalie Robertson, copying in the EPA’s then Chief Executive Officer, Mr Lee Miezis and two EPA authorised officers, Mr Mark Palmer and Ms Kathy Reynolds (‘the 19 March 2025 Email’).[5] In this email, the Second Defendant accuses the Plaintiff of applying different, or double, standards in its enforcement of the EP Act and, referring to emails attached to the 19 March 2025 Email, which alleges that the Council officers have held back approvals for the Premises. All five emails attached to the 19 March 2025 Email bear EPA discovery numbers.[6]
(b) On 27 March 2025, the Second Defendant sent an email to Mr King and Mr Miezis. This email opens with ‘SENT ON BEHALF OF STEWART GULL’ (the ‘First 27 March Email’).[7] This email pertains to written communication discovered in the proceeding which is alleged to be inappropriate and accuses the EPA and Council officers of colluding to delay the development of the Premises and cause harm to the Second Defendant. A sample of the communication complained of was attached to this email.[8] The email concludes with a request that an investigation be held into the conduct of the two EPA authorised officers, Mr Palmer and Ms Reynolds and two named Council employees.
(c) On the same day, a second email was sent by the Second Defendant to Council officers, Mr King and Ms Robertson, copying in the EPA’s CEO, Mr Miezis, and authorised officers Mr Palmer and Ms Reynolds (the ‘Second 27 March Email’). The Second Defendant claims in his email that ‘[w]e have a lot more emails showing the double standards of the EPA and council officers colluding and delaying our approvals.’[9] The Second Defendant asserted that he has ‘been denied natural justice and procedural fairness by the EPA and Council because of the collusion that has systematically occurred between officers of both regulatory bodies’. The Second Defendant then requested that Council staff ‘who have been found to have wilfully engaged in collusion with EPA personnel be stood down pending an inquiry.’
[5]The Affidavit of Peter Tziotis (filed 28 April 2025, S ECI 2022 03887, Supreme Court of Victoria), [1], [9]–[13]. Authorised Officers Mr Palmer and Ms Reynolds are responsible for conducting inspections of the Premises currently being developed by the First Defendant. Both Authorised Officers have provided affidavit evidence during the course of this proceeding.
[6]Some of the emails attached to the 19 March 2025 Email contain passages marked up by highlighter which are not present on the emails discovered by the Plaintiff.
[7]Mr Stewart Gull, the Second Defendant, is the director of Vista Estate Pty Ltd, the First Defendant.
[8]This sample includes two emails which bear EPA discovery numbers and a document comprising several emails.
[9]Attached to the Second 27 March Email are the same emails attached to the First 27 March Email.
I note that at the time the emails were sent by the Second Defendant, being 19 and 27 March 2025, no Council employees were identified as witnesses in this proceeding.[10] It could, however, be assumed that the EPA authorised officers Mr Palmer and Ms Reynolds were likely to be witnesses.
[10]On 16 May 2025, the Plaintiff filed and served an affidavit of Mr Connor Perrott of the Council, affirmed before the Plaintiff’s solicitor on 31 March 2023. This is the first instance where the Plaintiff has identified a Council employee as a witness in the proceeding (that is, after the emails the subject of the contempt summons were sent by the Second Defendant).
The Plaintiff filed its summons on 28 April 2025. In response, the Defendants filed their summons on 6 May 2025 and amended summons on 5 June 2025.
I will briefly note that the Plaintiff’s summons filed on 14 October 2024 seeking to vary the interim order of 13 September 2023 was also meant to be heard before the Court in conjunction with the Plaintiff’s summons filed 28 April 2025. However, prior to the hearing on 31 July 2025, the Plaintiff advised that it would no longer pursue its 14 October 2024 summons to vary the interim order. Therefore, this ruling will not address that withdrawn application.
This ruling considers the competing summons that were brought on before me. As set out below in my reasoning, I have concluded that the Second Defendant’s actions in sending the identified emails breached his obligation not to use documents sourced as a result of the coercive discovery powers of the Court, and that this action is, on its face, contemptuous of the Court’s processes. It is not appropriate to use documents which are discovered in the course of litigation for an ulterior purpose and such behaviour must not be condoned. However, the Second Defendant has provided both an explanation and an apology to the Court. In that regard, it can be said that he has purged his contempt. In such circumstances, I am not persuaded that there is any further action which is required in respect of the contempt allegation, save as to the issue of costs.
Additionally, I have not found there to be any interference with a witness by the Second Defendant in the course of this proceeding and the concerns of the EPA in bringing this application are overstated in all of the circumstances.
The Defendants are clearly frustrated by the impact on the completion of their development as a consequence of the EPA’s litigation against them. Whilst the use of documents discovered for any purpose outside the litigation in which they were discovered cannot be condoned, the environmental issues which underlie the substantive proceeding ought to be the focus of the EPA’s litigation.
Insofar as the Defendants’ summons seeks release from the Harman undertaking for the documents identified which were used to make the complaint or enquiry to the Council and or the EPA, I will make that order, limited to the documents and disclosure identified in the Defendants’ summons.
The Court expects that the parties will now concentrate on resolving the substantive proceeding.
LEGAL PRINCIPLES
Contempt
The Plaintiff has pursued a contempt application against the Second Defendant. The burden of proof falls on the Plaintiff to prove that there has been contempt of Court beyond reasonable doubt given that a contempt application is criminal in nature.[11] The common characteristic of all contempt is that ‘they involve an interference with the administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court’.[12] In this instance, the Plaintiff seeks to prove that the Second Defendant is in contempt of Court by breaching the Harman undertaking and by interfering with a witness.
[11]R v Taylor [1999] 3 VR 657, [27] (‘Taylor’).
[12]Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362, [10].
Once contempt has been proven, the relevant remedies must be identified. Kirby J considered this stating:[13]
Conceding that such categories of contempt may sometimes overlap, in a case of technical contempt, where the contemnor has offered an apology which the court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court’s orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.
[13]Pelechowski v Registrar (1999) 162 ALR 336, [148].
In the matter of R v Witt (No 2),[14] J Forrest J outlined relevant considerations in imposing penalties for contempt:
[14][2016] VSC 142, [93].
(a) the nature and circumstances of the contempt (including the objective seriousness of the contempt);
(b) the effect of the contempt on the administration of justice;
(c) the contemnor’s culpability as judged by his or her state of mind or intention at the time of the contempt;
(d) general and specific deterrence;
(e) the previous good character of the contemnor (including the absence or presence of a prior conviction for contempt);
(f) the contemnor’s personal circumstances and financial means;
(g) whether the contemnor has exhibited contrition and made an apology;
(h) denunciation of the contempt; and
(i) the passage of time since the occurrence of the contempt.
Harman undertaking
The first basis of contempt the Plaintiff relies upon, and upon which the Second Defendant seeks retrospective release and modification, is the Harman undertaking. The elements of a breach of the Harman undertaking are:
(a) The mens rea element which consists of the contemnor having actual knowledge of the origin of the documents or the information that is being disclosed. A proven intention to interfere is usually sufficient to establish contempt.[15] However, the intention to interfere with the due administration of justice is not a required element of contempt, although intention may render the offence more serious.[16] A deliberate disclosure will constitute wilful disobedience unless it is casual, accidental or unintentional.[17]
(b) The actus reus of the charge forms the second element of contempt. That is, that the contemnor must have disclosed the documents or information, or used them for a purpose other than in connection with the proceeding.
[15]Harkianakis v Skalkos (1997) 42 NSWLR 22, 28.
[16]Construction Forestry, Mining, and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors [2014] VSCA 261, [138]; R v Vasiliou [2012] VSC 216, [19].
[17]Khoury v Kirwan (No 4) [2021] VSC 333, [110].
When a party to litigation is compelled to disclose documents or information, whether by a rule of Court or a specific Court order, the party obtaining that disclosure implicitly undertakes not to use the disclosed material other than for the purpose for which it is given, unless the Court grants leave for other use or the material is received into evidence.[18]
[18]Hearne v Street (2008) 235 CLR 125, [96].
This implied undertaking is commonly known as the ‘Harman undertaking’.[19] This undertaking is involuntary and is imposed by law as a condition of discovery and an obligation owed to the Court.
[19]Khoury v Kirwan (No 4) [2021] VSC 333, [4] citing Harman.
Justice John Dixon in Khoury v Kirwan (No 4) (‘Khoury’)[20] observed:
There is a public interest in the enforcement of a Harman undertaking to maintain the integrity of the administration of justice. That is so even though a Harman undertaking serves a private interest in protecting the privacy of persons who are compelled to produce confidential documents by court process.
[20]Ibid [106].
Hence, where a breach to the Harman undertaking has been proven to have occurred, this will amount to contempt of Court.[21]
[21]Hearne v Street (2008) 235 CLR 125, [105]–[108].
Release or modification of a Harman undertaking
The relevant legal principles in relation to an application to modify or release a party from the implied Harman undertaking, as sought by the Second Defendant, were summarised by Weinstein J in Saridas v Papuan Oil Search Limited:[22]
[22][2025] NSWSC 481, [21]–[29]. However, this case was not concerned with an application for retrospective modification or release from the Harman undertaking.
(a) The Court controls the obligation, in the sense that it can modify or release a party from it. The power to dispense with or modify the implied obligation will be exercised if there are ‘special circumstances’.[23]
[23]Ibid [21].
(b) For ‘special circumstances’ to exist, it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors, but they include the nature of the document, whether it contains personal data or commercially sensitive information, and the likely contribution of the document achieving justice in respect of the matter for which the release is sought.[24]
[24]Ibid [22].
(c) The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question. Good reason must be shown why documents produced in one piece of litigation should be used for other non‑litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.[25]
(d) The assessment must be undertaken in relation to the specific documents in respect of which the release is sought.[26]
(e) The scope of the leave may be general or limited and may be granted on terms.[27]
[25]Ibid [23].
[26]Ibid [28].
[27]Ibid [29].
The Court’s discretion to release a party bound by the implied undertaking, so as to permit the use of the document for a purpose other than the conduct of the proceeding itself, may be exercised retrospectively in order to grant leave to cure an earlier breach.[28] Where leave is sought retrospectively:
(a) the modification or release should be ‘no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest’;[29] and
(b) the circumstances in which the Harman undertaking came to be breached bear upon the exercise of the Court’s discretion.[30]
[28]Yap v Lee (No 2) [2024] VSC 730, [96].
[29]Ibid [97].
[30]Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67, [101].
Justice Lyons, in PharmX Pty Ltd (in its capacity as trustee of PharmX Unit Trust) v Fred IT Group Pty Ltd (No 2),[31] considered that the steps taken to purge the contempt were relevant to his discretion:
[T]he Court ought to take into account steps which may have been taken by the applicants to address or redress the breach in the meantime. In my view, the exercise of my discretion in the interests of justice requires me to have regard to such conduct in redressing even a deliberate breach of the implied undertaking.
In this case, I consider that the applicants have ‘purged’ or ‘cleaned their hands’ of any deliberate failure to comply with the implied undertaking by apologizing to the first defendant and to the Court and also by paying indemnity costs of the first defendant arising by reason of the failure to comply with the implied undertaking.
[31][2019] VSC 494, [39]–[40].
Interference of a witness
The second basis of contempt the Plaintiff relies upon is the interference of a witness by the Second Defendant.
It is contempt to deter a witness from giving evidence or influencing the testimony of a witness.[32] As Starke J said in R v Wright (No 1):[33]
[I]f witnesses cannot come freely and voluntarily to court to give their evidence without fear of threats or violence, they may not come at all, or if they are forced to come, they may end or twist their evidence. In most actions at nisi prius, the evidence given by the witnesses determines the outcome, and so any conduct which is calculated to interfere with the freedom of the witnesses in giving their evidence is, in my opinion, a most serious and fundamental interference with the administration of justice.
[32]Taylor [15]; R v Silverstein [2020] VSCA 233, [106].
[33][1968] VR 164, 165.
Moreover, the Victorian Court of Appeal in R v Silverstein[34] observed that:
It is well recognised that contempt of court may be committed by intimidatory or retributive conduct directed against a party, a witness, or a legal practitioner in litigation. The critical question in each case is whether the conduct was intended to intimidate, or seek retribution from, the person who is engaged in the litigation, or whether it had a real tendency to have that effect.
[34][2020] VSCA 233, [106].
Whether conduct has a real tendency to intimidate a witness is determined objectively. The required tendency has been described as a ‘real and definite tendency to prejudice or embarrass pending proceedings’.[35] Where there are multiple intentions behind the conduct, a contempt charge is made out if it is proved that the improper intention was the real or predominate intention driving the conduct.[36]
SUBMISSIONS
Plaintiff’s submissions
[35]Harkianakis v Skalkos (1997) 42 NSWLR 22, 27.
[36]R v McLachlan [1998] 2 VR 55, 66.
Harman undertaking
The Plaintiff asserts that the Second Defendant deliberately disclosed documents and information subject to the Harman undertaking in the 19 March 2025 Email, the First 27 March Email, and the Second 27 March Email.
The Second Defendant, according to the Plaintiff, knew of the existence of this proceeding and knew that the documents attached to the three emails he sent were disclosed by the EPA in the proceeding. Not only do the documents bear EPA discovery numbers but the First 27 March Email states ‘[t]hrough discovery in the Supreme Court proceeding … written communication has been identified between officers of the Authority and the Council, which is inappropriate conduct’.[37] The Plaintiff contends that this disclosure of documents and information was made to the Council, a third party, for a purpose other than to resolve facts or issues in dispute between the parties in the proceeding.
[37]Affidavit of Peter Tziotis (filed 28 April 2025, S ECI 2022 03887, Supreme Court of Victoria), [22].
Thus, the Plaintiff asserts that the elements of contempt are made out on the basis of the intentional and actual breach of the Harman undertaking.
Interference with a witness
The Plaintiff outlines that the Second Defendant, in his 19 March 2025 Email and Second 27 March Email, copied in the EPA CEO, Mr Miezis, and authorised officers Mr Palmer and Ms Reynolds.
It was asserted that the Second Defendant knew that authorised officers Mr Palmer and Ms Reynolds had given affidavit evidence in this proceeding. Moreover, these authorised officers had carried out, and were continuing to carry out, inspections of the Premises that the Second Defendant knew would likely become part of the evidence they would give at the final hearing.
In the 19 March 2025 Email and Second 27 March Email, the Second Defendant accuses the EPA officers of inappropriate conduct in the performance of their duties as EPA officers. In the Second 27 March Email, the Second Defendant requests that the Council conduct an inquiry into the conduct of Council officers who were ‘colluding’ with the EPA officers.
The Plaintiff contends that authorised officers Mr Palmer and Ms Reynolds, when reading these emails, could be in no doubt that they were the EPA officers that the Second Defendant refers. Thus, the 19 March 2025 Email and the Second 27 March Email had a real and definite tendency to interfere with the administration of justice by intimidating or exerting undue pressure on authorised officers Mr Palmer and Ms Reynolds, compromising their ability to provide evidence freely and without fear.
The Plaintiff asserts that the Second Defendant had a real and definite intention to intimidate based on the fact that:
(a) the EPA officers, and the CEO of their employer, were copied into the 19 March 2025 Email and the Second 27 March Email;
(b) the 19 March 2025 Email and the Second 27 March Email made serious accusations about the EPA officers’ conduct in respect of the performance of their duties; and
(c) the Second 27 March Email called for an inquiry into Council officers’ ‘collusion’ with the EPA officers.
The Plaintiff asserted that the threat of disciplinary proceedings of a witness amounts to an act of contempt. The Plaintiff submits that the accusations and threat of disciplinary proceedings had a real and definite tendency to interfere with the administration of justice. Further, the Second Defendant had the intention of interfering with the administration of justice when he made the accusations against the EPA officers.
Alternatively, the Plaintiff contends that the Second Defendant was reckless and indifferent to the undue pressure he placed upon the EPA officers, who he knew were likely to be called as witnesses.
Punishment for contempt
In a letter dated 28 March 2025 to the Second Defendant’s solicitor, the EPA drew the solicitor’s attention to the Second Defendant’s conduct and sought the Defendants’ response to the EPA’s concerns that the Second Defendant may have breached the Harman undertaking and interfered with a witness.[38] The EPA also sought an explanation and a remedy for that conduct. No response was provided to the EPA’s letter.
[38]Ibid [27].
The EPA was then copied into correspondence with the Court in which the Second Defendant’s solicitor foreshadowed an application by the Second Defendant for retrospective leave from the Harman undertaking.
The Plaintiff notes that, in respect of this application and the Second Defendant’s affidavit filed 24 April 2025, the Second Defendant does not:
(a) depose to sending the First 27 March Email on behalf of Stewart Gull;
(b) confirm whether the documents attached to the 19 March 2025 Email, the First 27 March Email, or the Second 27 March Email (bearing EPA discovery numbers) were documents he obtained from the EPA through discovery in this proceeding;
(c) apologise to this Court, or even acknowledge, that he breached the Harman undertaking in sending the 19 March 2025 Email, the First 27 March Email, or the Second 27 March Email;
(d) attempt to reassure the Court that he has not committed any further breaches of the Harman undertaking beyond sending the 19 March 2025 Email, the First 27 March Email, and the Second 27 March Email;
(e) explain his intention behind sending the 19 March 2025 Email, the First 27 March Email, or the Second 27 March Email;
(f) otherwise declare that at the time he sent the 19 March 2025 Email or the Second 27 March Email his intention was not to intimidate or place undue pressure on EPA authorised officers in an effort to compromise their evidence at the final hearing; or
(g) apologise to this Court, or even acknowledge, that by sending the 19 March 2025 Email and the Second 27 March Email he risked undermining the proper administration of justice.
For the above assertions outlined by the Plaintiff, it contends that the Court should make an order denouncing the Second Defendant’s conduct, in the strongest terms possible, and punish him for his contempt to protect the due administration of justice.
The Plaintiff also seeks that the Second Defendant be compelled to provide all copies to the Court of correspondence to persons who are not involved in the proceeding, in which he has attached or referred to the Plaintiff’s discovered documents, and to restrain the Second Defendant, or his employees or agents, from engaging in the same or similar conduct as the contempt of Court charged against him.[39]
[39]Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 38.01.
Defendants’ submissions
The Defendants submit that the Plaintiff has not established the contempt of Court charges. In the alternative, that even if a breach has occurred, no punishment is warranted.
Harman undertaking
The Defendants submit that the documents, which the Plaintiff contends were subject to the undertaking comprise (with one exception) of email communications between the Plaintiff and the Council, were already in the possession of the Plaintiff, and all but one in the possession of the Council. The one exception is a Plaintiff email recording a discussion with the Council. In other words, the discovered emails were not provided to any third party, nor invaded any privacy or confidentiality.[40]
[40]Hearne v Street (2008) 235 CLR 125, [107].
The documents were utilised for the purpose of the Second Defendant having made complaints or enquiries in connection with the Council’s dealings with the Defendants’ development, including in respect of the Council’s engagement with the Plaintiff. The Defendants contend that, by delaying dealing with the Defendants’ application subject to approval by the Plaintiff to act otherwise, the Council was not acting lawfully or treating the Defendants in a fair or reasonable way.
The Defendants submit that if the Court determines that a breach of the Harman undertaking has occurred, leave ought to be granted in respect of the following documents:
(a) EPA.001.001.0090[41] — A Council email of 16 March 2023, copied to the Plaintiff. This email was sent from the Council to the Plaintiff referring to ‘an affidavit for a dodgy development in Brown Hill’.
[41]Affidavit of Peter Tziotis (filed 28 April 2025, S ECI 2022 03887, Supreme Court of Victoria), bundle exhibit TP-1, 31.
(b) EPA.001.001.0415[42] — A Council email of 1 December 2022 to the Plaintiff. This email was sent from the Council to the Plaintiff noting that if the Defendants’ documents were to be approved, the Defendants’ development could be progressed, and the Council was ‘keen to ensure this does not affect [the Plaintiff’s] current actions, etc’, with the natural inference to be drawn that the Council would delay any approval in relation to the Defendants’ development if it would assist the Plaintiff in its dealings with the Defendants.
[42]Ibid bundle exhibit TP-1, 32.
(c) EPA.001.001.0115[43] — A Council email of 2 March 2023 copied to the Plaintiff which states, ‘I will place notes (hidden from all except internal) to say not to advance [the Defendants’ applications] – Do you agree?’ The email plainly establishes the substance of the Defendants’ complaint that the Council intentionally delayed any approval of the Defendants’ applications for a purpose unrelated to the applications themselves.
[43]Ibid bundle exhibit TP-1, 34, 41–46.
(d) EPA.001.001.0354[44] — A Council email of 1 December 2022 copied to the Plaintiff stating ‘we suspect the developer is trying to offload the assets … to Council to avoid legal proceedings’, which strongly supports the Defendants’ complaint that the Council was not dealing with the Defendants in a fair and impartial manner. Relevantly, the email related to the practical completion of stage 1 and the necessary certification of the plan of subdivision and registration with Land Titles Office, and each statutory decision and function of the Council. This delayed the release of lots for stage 1 by several months and the Defendants lost unconditional lot sales because titles were not delivered within 18 months (approximately $3.1 million).[45]
[44]Ibid bundle exhibit TP-1, 33, 39.
[45]Affidavit of Cameron Gull (filed 16 March 2023, S ECI 2022 03887, Supreme Court of Victoria), [47]–[53]; Affidavit of Cameron Gull (filed 30 August 2023, S ECI 2022 03887, Supreme Court of Victoria), [5]–[6].
(e) EPA.001.001.5209[46] — The Plaintiff’s email of 18 February 2022 recording a communication with the Council, which is disparaging of the Second Defendant referring to him as ‘think[ing] he is a big player around town’ and again is relevant to the Defendants’ complaint about the Council’s conduct.
[46]Affidavit of Peter Tziotis (filed 28 April 2025, S ECI 2022 03887, Supreme Court of Victoria), bundle exhibit TP-1, 35, 40.
(f) Extracted single pages of Mark Palmer document 48 and Kathy Reynolds document 24.[47] These are email communications between the Council and the Plaintiff between June and October 2024 regarding requests from the Defendants for endorsement of the site environment management plan for stage 2A revisions 14 and 15.
(g) Extracted single pages of Kathy Reynolds documents 26 and 30.[48] These are emails between the Council and the Plaintiff regarding requests from the Defendants for endorsement of the site environment management plan for stage 2A in November 2024 (which reverted back to revision 13 as the Council failed to make a decision in relation to the Defendants’ request that the Council approve revisions 14 and 15).
(h) The remaining documents referred to in sub‑paragraphs 1(h) and 1(i) of the contempt summons are to the same effect (communications between the Council and the Plaintiff) and, consistent with the above, demonstrate the Council’s intentional delay of approvals relating to the Defendants’ development.[49]
[47]Affidavit of Cameron Gull (filed 16 May 2025, S ECI 2022 03887, Supreme Court of Victoria), CSG‑7 (Part B), 219–220.
[48]Ibid CSG-7 (Part B), 222, 232–235.
[49]Affidavit of Jackson Zaal (7 November 2024, S ECI 2022 03887, Supreme Court of Victoria), [23]–[29], [35]–[38]; Affidavit of Jackson Zaal (6 June 2025, S ECI 2022 03887, Supreme Court of Victoria), [72]–[85].
It was submitted on behalf of the Second Defendant that the documents demonstrate, on their face, a compelling reason for modifying or releasing the Harman undertaking, if indeed the Court determines that a breach has occurred.
The submission argued that the documents that are the subject of the Defendants’ summons are clearly relevant to the complaint of collusion between the Council and the EPA. Further, the documents are highly likely to contribute to the Defendants achieving justice in respect of their grievance about the delays by the Council in dealing with matters relating to their development, including in respect of its engagement with the Plaintiff, and particularly in circumstances where a review has now been commenced in relation to the subject matter of the Defendants’ complaints.[50] Accordingly, the Defendants submit that special circumstances have been demonstrated.
[50]Email of 26 May 2025 from Dru Marsh, Chief Quality Officer of the Plaintiff; Affidavit of Cameron Gull (filed 16 May 2025, S ECI 2022 03887, Supreme Court of Victoria), [51], 236–238.
The Defendants further assert that the documents were created in the context of what should have been the Council’s usual dealings with development applications. They were not created and did not relate to any ‘private’ or ‘personal data’ or matter unrelated to Council business, and the only ‘commercially sensitive information’ could have been that of the Defendants. It was submitted that, in any event, the Plaintiff has not adduced any evidence to support a claim of confidentiality or commercial sensitivity.
Interference with a witness
It was submitted that, at the time the emails were sent by the Second Defendant (19 and 27 March 2025), no Council employees were identified as witnesses in this proceeding. On 16 May 2025, the Plaintiff filed and served an affidavit of Mr Connor Perrott of the Council affirmed before the Plaintiff’s solicitor on 31 March 2023. This was the first time that the Plaintiff had identified a Council employee as a witness in the proceeding (that is, after the emails the subject of the contempt summons were sent by the Second Defendant).
Further, it was submitted that the affidavits relied upon by the Plaintiff[51] do not demonstrate any evidence of the Second Defendant having intimidated or disparaged a witness in this proceeding causing interference or obstruction of this proceeding.
[51]Affidavit of Peter Tziotis (filed 28 April 2025, S ECI 2022 03887, Supreme Court of Victoria) and Affidavit of Kathy Reynolds (filed 26 May 2025, S ECI 2022 03887, Supreme Court of Victoria).
CONSIDERATION
Harman Undertaking
As observed by the High Court of Australia in Hearne v Street,[52] the Harman undertaking requires the receiving party of discovered documents or information to not use that document or information ‘for any other purpose other than that for which it was given unless it is received into evidence’.
[52](2008) 235 CLR 125, [96].
The Second Defendant asserts the position that the discovered documents were already in the possession of the Plaintiff, and all but one in the possession of the Council. Thus, it is contended that the discovered documents were not provided to any third party, nor invaded any privacy or confidentiality.
I do infer from the evidence before me, that the Second Defendant knew of the origin of these documents, as the documents and emails bore EPA discovery numbers, plainly indicating its relationship to this proceeding. Moreover, the First 27 March 2025 Email begins with ‘through discovery in the Supreme Court proceeding’. On the face of it, these documents were used for a purpose, other than in this proceeding. It is difficult in the face of that correspondence to conclude otherwise.
Whilst it is sufficiently clear that the documents used in the emails by the Second Defendant were discovered documents, and in this aspect the misuse of the documents is established, I do not consider that the Second Defendant had an intention to interfere with the administration of justice. Rather, the Second Defendant sought to agitate his grievance against the Council and the Plaintiff as to the prejudicial delay against the Defendants.
The Plaintiff has attempted to establish a stronger intention than discussed above, and relies on the decision of Khoury. In this case, Khoury was found to be ‘contumacious’ and defiant to the authority of the Court.[53] The Court in Khoury rejected the application to purge an admitted contempt on the basis that there was not a full and frank disclosure, and a failure by Khoury to admit true intention of the conduct constituting contempt.[54]
[53]Khoury v Kiwan (No 4) [2021] VSC 333, [122], [127]–[129].
[54]Ibid [114]–[119].
In contrast with Khoury, the Second Defendant in this proceeding has been transparent with the Court as to his true intention for his wrong conduct. I accept that he was frank in his disclosure of the emails and acted promptly in putting forward his summons seeking release from the undertaking. I infer from this sequence of events (and the content of the summons) that the legal consequences of his email correspondence had been well explained to him.
Further, the Second Defendant has stated that he will not engage in this conduct in the future. The Second Defendant has made a public apology for his error, a factor which should be taken into account in determining punishment for contempt.
Consequently, in considering whether the elements of contempt have been established, I am satisfied that there has been a use of the documents discovered by the Second Defendant for a purpose not directly associated with the proceeding. On its face, that is in breach of the Civil Procedure Act 2010 (Vic) and the Harman undertaking.
However, I do accept that the use of the particular documents were not entirely remote from the underlying dispute between the Defendants and the EPA, and the associated actions and permissions which are required by the Council to enable the Defendants’ project to be completed. I also accept that there was no commercial disclosure or privacy implications from the disclosure involved. Whether there is any merit in the prejudice or persecution the Defendants feel they are or have been subjected to by the authorities from whom they require permission, it need not be further debated in this application. The motivation, however misguided it may be, does provide a rationale for the emails which were sent by the Second Defendant, which in my view does not amount to contumelious behaviour.
I agree that it is not appropriate to make allegations of corruption or call for public enquiries in the midst of litigation. Unfortunately, these sentiments are too often contained in correspondence to public officials from litigants. I recognise that the role of a public servant undertaking work on behalf of the community (such as a Council member or an EPA officer) is often a trying and difficult one, and we all should be working to be kinder and more civil in our dealings with one another. However, in all of the circumstances here, I do not form the view that the use of the documents in the emails relied upon by the EPA, whilst in breach of the Harman undertaking, amount to egregious or contumelious behaviour on behalf of the Second Defendant.
In weighing these factors, I am of the view that the Second Defendant is in contempt of the Court for the use of discovered documents for a purpose other than in this proceeding.
In determining if or what penalty ought be imposed having found the Second Defendant guilty of contempt by the misuse of the discovered documents, I also consider the abovementioned matters to be relevant to any penalty imposed. In particular, by reference to the factors indicated at [17], I consider that the following are of particular relevance in assessing any penalty:
(a) that the documents were (bar one) in the possession of the parties to whom the emails were directed and they did not involve a breach of privacy or commercial confidentiality;
(b) there was no evidence of character adverse to the Second Defendant (including the absence or presence of a prior conviction for contempt);
(c) an explanation for the misuse of the documents was given and the contemnor’s culpability as judged by his state of mind or intention at the time of the contempt, in my view, was motivated by frustration rather than directed at the undermining of the administration of justice; and
(d) in assessing the specific or general deterrence consideration, I do consider that any misuse of discovered documents cannot be condoned, but in considering the circumstances, the nature of the contempt is at the lower end of the scale.
I have concluded that the Second Defendant’s actions in seeking to regularise the Harman undertaking breach by his application for release from it on a limited basis, his acknowledgement that this behaviour was wrong and apology to the Court has sufficiently purged his contempt and ‘cleaned [his] hands’ of any deliberate failure to comply with the implied undertaking.[55] In my view, no further punishment save by way of costs consequences of the summons is necessary.
[55]PharmX Pty Ltd (in its capacity as trustee of PharmX Unit Trust) v Fred IT Group Pty Ltd (No 2) [2019] VSC 494.
Below, I have separately dealt with the additional contempt allegation against the Second Defendant for the interference and intimidation of a witness. However, as explained below, I am not satisfied that this allegation is made out. Insofar as it expands the harm alleged to the administration of justice, and thus a factor to be taken into account in any penalty imposed, I do not consider that a further or separate penalty is required, save for the Court’s recording of its condemnation of the aggressive lack of civility which is contained in the emails and, as noted above, the costs consequences of the applications brought.
Interference with a witness
Concerning the allegation of an interference with a witness, I note that at the time the March emails were sent by the Second Defendant and the contempt summons were brought by the Plaintiff, no Council employees had been identified as witnesses in this proceeding. However, on 16 May 2025, the Plaintiff filed and served an affidavit of a Council employee, Mr Connor Perrott. This was the first instance of the Plaintiff identifying a Council employee as a witness in the proceeding.
EPA authorised officer Mr Palmer has not given affidavit evidence in this proceeding. At the time the emails were sent, the Plaintiff had not identified authorised officer Mr Palmer as a proposed witness in this proceeding.
The email in dispute concerns the Second Defendant’s pursuit of an investigation into the conduct of the EPA authorised officers. No email referred to or contained any threat of ‘disciplinary proceedings’, or removal from office of any officer of the Plaintiff. Rather, the Second Defendant has raised his concerns with the conduct between the EPA authorised officers and Council employees.
The interpretation of the email by the Plaintiff appears to be misconceived. As noted above, kinder and more polite dealings ought be the ambition, but in my view, the reaction of the EPA in bringing this contempt application based on an allegation of intimidation of a witness or potential witnesses demonstrates a level of oversensitivity.
The public should have the ability to request investigations into government officials as it promotes accountability, transparency, and strengthens confidence in public government departments. However, here the actions of the Second Defendant are a misguided manoeuvre occurring during the course of the litigation.
There appears to be no evidence before me of any intimidation of a witness in the proceeding, any influence over a witness to alter or not give their evidence, and any obstruction to this proceeding having been caused by the emails having been sent. In my opinion, the Second Defendant is not in contempt of the Court on the basis of interfering with a witness.
The Defendants’ Summonses
The Defendants’ summons and amended summons were filed in order to regularise the breach of the Harman undertaking and the associated allegation of interfering with a witness.
For my reasons set out above, I accept that the Second Defendant has sufficiently purged the alleged contempt. However, as contemplated in the Defendants’ summons, I consider it appropriate to grant retrospective release from the Harman undertaking for documents that were disclosed and used in the March emails. This is on the basis that the Second Defendant appears not to have been fully cognisant to his obligations (but now is so), and his motivation to use such documents to raise a personal grievance against the EPA and Council is adjacent to the subject matter of this proceeding.
Further, no prejudice or damage has resulted from the breach of the Harman undertaking as the documents (bar one) were already available to the parties copied into the emails. Thus, I consider it just and appropriate that the Second Defendant be released from the Harman undertaking for the documents that were used in the March emails.
In this regard, I am satisfied that there are ‘special circumstances’ established which would warrant a limited release of the Second Defendant’s Harman undertaking and the orders which follow will reflect the retrospective and limited release of the documents identified in paragraph 1 of the Defendants’ summons dated 5 June 2025 and subject to there being no further use or reliance on those documents than as otherwise authorised by law.
This release is retrospective only, no prospective grant is given. Further breaches of this nature could be taken to amount to contumacious behaviour towards the Court and the Defendants are clearly on notice that any further breach will be clearly regarded as such.
CONCLUSION
In view of the foregoing, I will make orders which reflect the findings set out above to dispose of the respective parties’ summons.
In respect of the first allegation of contempt based on the misuse of discovered documents, I find the Second Defendant is in contempt of the Court.
However, given his apology and acceptance of the wrongfulness of his action in this regard, and my satisfaction that there should be a limited release from the Harman undertaking save for the issue of costs, I have determined no further punishment is appropriate or necessary.[56]
[56]Plaintiff’s summons filed 28 April 2025.
In respect of the second allegation of the interference with a witness in the proceeding, I find that this allegation is not made out.[57]
[57]Ibid.
The Defendants’ application for release or modification from the Harman undertaking is granted on the limited and retrospective basis only.[58]
COSTS
[58]Defendants’ summons filed 6 May 2025 and amended summons filed 5 June 2025.
Given my findings above, I will order that the Plaintiff’s costs of its summons filed 28 April 2025 be paid by the Defendants, on a standard basis, to be taxed in default of agreement.
In respect of the costs incurred by the Plaintiff relevant to the Defendants’ summons filed 6 May 2025 and amended summons filed 5 June 2025, the Plaintiff’s costs shall be paid by the Defendants, on a standard basis, to be taxed in default of agreement. I have made this order as it was necessary for the Defendants to bring the summons to regularise the Harman undertaking issue and, as a consequence, for the Defendants to seek the indulgence of the Court in this regard. Therefore, it is reasonable for the Defendants, who have breached the Harman undertaking, to pay the Plaintiff’s costs for this portion of the proceeding.[59]
[59]PharmX Pty Ltd (in its capacity as trustee of PharmX Unit Trust) v Fred IT Group Pty Ltd (No 2) [2019] VSC 494, [39]–[40].
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