Hearne v Street [2008] HCA 36 6 August 2008 S123/2008
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
D F Jackson QC with T G R Parker SC for the appellants (instructed by Clayton Utz)
T A Alexis SC with P M Sibtain for the respondents (instructed by Wise Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hearne v Street
Courts – Appeal – Jurisdiction – Supreme Court of New South Wales (Court of Appeal) – Civil and criminal contempt of court – Character of contempt charged – Whether civil or criminal – Whether appeal to Court of Appeal precluded by findings and orders of primary judge acquitting alleged contemnors.
Contempt of court – Where implied undertaking by corporate litigant not to use documents prepared by another party otherwise than for purpose of proceedings in which they were prepared – Whether appellants as servants and agents of corporate litigant bound by obligation – Meaning of "implied undertaking" – Whether knowledge of implied undertaking required or whether knowledge of facts generating an obligation imposed by law sufficient.
Contempt of court – Supreme Court Act1970 (NSW), s 101(6) – Whether breach of implied undertaking civil or criminal contempt – Whether statement of charge precluded appeal to New South Wales Court of Appeal.
Contempt of court – Disclosure of documents filed in but not yet received in evidence by court – Whether implied undertaking attached to documents that they would not be disclosed to third parties without leave of court – Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament – Whether such disclosure protected by public interest defence based upon right of communication with Parliament – Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors.
Contempt of court – Implied undertaking not to disclose documents filed in court until received in evidence – Whether implied undertaking now a substantive rule of common law – Whether applicable law should be re-expressed – Whether such questions should or could be decided.
Parliament – State Parliament (NSW) – Privileges of – Contempt of – Whether provision of documents to Minister, a member of Parliament, within privileges of Parliament or public interest defence based thereon – Whether such questions could or should be decided in light of record and arguments of parties.
GLEESON CJ. The parties to this appeal agreed that it raised two issues for decision. The issues were said to arise "where documents prepared for legal proceedings have been…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hearne v Street [2008] HCA 36
Case
[2008] HCA 36
Decision Date
CaseChat Overview and Summary
The appeal concerned the alleged contempt of court by the appellants, who were servants and agents of corporate litigants involved in nuisance proceedings. The dispute arose when the appellants furnished documents, including parts of an affidavit and an acoustic report filed in the Supreme Court but not yet tendered in evidence, to the Minister for Tourism, Sport and Recreation and her staff. The residents, the opposing parties in the nuisance proceedings, subsequently filed notices of motion and statements of charge against the appellants alleging contempt of court. The primary judge dismissed these charges, but the Court of Appeal of New South Wales, by majority, allowed the residents' appeals, finding the appellants guilty of contempt and remitting the matter for penalty. The appellants then appealed to the High Court of Australia.
The High Court was required to determine whether the "implied undertaking" given by the corporate litigants, which prohibited the use of documents prepared by another party otherwise than for the purpose of the proceedings in which they were prepared, extended to the appellants as servants and agents. A further issue was whether the disclosure of these documents to the Minister constituted contempt, and if so, whether such disclosure was protected by parliamentary privilege or a public interest defence. The court also considered the competency of the residents' appeal to the Court of Appeal under s 101(6) of the *Supreme Court Act 1970* (NSW), which precludes appeals from acquittals of criminal contempt.
The High Court, by majority, held that the implied undertaking extended to the appellants, and their disclosure of the documents amounted to contempt of court. The court reasoned that the implied undertaking, now considered a rule of law, bound those acting on behalf of the corporate litigant. While acknowledging reservations about the scope of the arguments presented and the potential for unaddressed legal questions, the majority concluded that the appeal to the Court of Appeal was competent, as the primary judge's findings did not definitively acquit the appellants of criminal contempt in a manner that would preclude an appeal under s 101(6). The court found that the appellants' actions breached the implied undertaking, and no defence was established.
The appeal was dismissed with costs. The High Court agreed with the Court of Appeal's decision that the appellants were guilty of contempt of court and that the residents' appeal to the Court of Appeal was competent.
Orders
Orders of the court
Appeal dismissed with costs. (per Hayne, Heydon and Crennan JJ, Gleeson CJ and Kirby J delivering separate judgments and agreeing with the orders)
Background
Background to the litigation
The Court of Appeal made consequential orders remitting the residents' notices of motion to Gzell J for hearing as to penalty. By special leave, the appellants have appealed to this Court.The facts and legislation The facts:The factual background to the dispute between the companies with which the appellants are associated and the residents is explained in the reasons of Hayne, Heydon and Crennan JJ ("the joint reasons"). The explanation is expressed in terms that I accept[7]. Those reasons describe the residents' original initiation of proceedings in the Supreme Court of New South Wales claiming relief for the tort of nuisance against Luna Park Sydney Pty Ltd and Metro Edgley Pty Ltd, companies concerned in the operation of Luna Park ("the Park"). This is an amusement park situated on the north shore of Sydney Harbour not far from, and almost opposite to, the central business district of the city. [7]Joint reasons at [64]-[69]. The record reveals that, whilst the nuisance proceedings were on foot, each of the appellants took steps to furnish certain documents to the Minister for Tourism, Sport and Recreation ("the Minister") or her staff. These documents included part of an affidavit sworn by one of the residents and filed, but not yet tendered or read, in the proceedings in the Supreme Court; as well as part of an acoustic report that had been filed on the residents' behalf. A further document detailed what one of the appellants suggested were "ridiculous complaints" that had been submitted to the Park. These documents were said to illustrate the need for new legislation to shield the Park and its operators from proceedings for noise nuisance lest such proceedings drive the Park to closure[8]. Self-evidently, any such closure would diminish the revenues to the government derived from the Park and put in serious question the future of the Park as a popular amusement facility for tourists and other patrons. [8]Joint reasons at [70]-[74]. By inference, neither of the appellants, at least initially, regarded their conduct in providing the documents to the Minister and others as wrongful or unlawful. The provision of this material seemingly had its desired effect. As explained in the joint reasons[9], the Minister promptly introduced into Parliament the Luna Park Site Amendment (Noise Control) Bill 2005 (NSW). In the space of a week, the Bill had passed both Houses and received the Royal Assent. The resulting Act commenced operation with effect retrospective to a few days prior to the commencement of the residents' proceedings in the Supreme Court. This forced the residents to reframe their proceedings[10]. They also sought, and obtained, an order for interrogatories directed to Luna Park Sydney Pty Ltd. Ultimately, they filed notices of motion and statements of charge against the appellants, initiating the proceedings that have now found their way to this Court[11].[9]Joint reasons at [75].[10]Joint reasons at [76].[11]Joint reasons at [81]. The legislation: The reasons and conclusions of the primary judge and of the Court of Appeal are explained in the joint reasons[12]. The critical legislative provisions are s 101(5) and (6) of the Supreme Court Act 1970 (NSW) ("the Supreme Court Act"). Those sub-sections were inserted a decade before these proceedings commenced by the Courts Legislation Amendment Act 1996 (NSW). They provide:"(5)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 (whether civil or criminal) of the Court or of any other court.(6)Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt."[12]Joint reasons at [89]-[94].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
KIRBY J
(dissent)
HAYNE, HEYDON AND CRENNAN JJ
(dissent)
Notwithstanding the unsatisfactoriness of the issues that are left for resolution, I am constrained in deciding the appeal to proceed as the appellants insist, and to address the issues presented in the form in which they have been tendered.The resulting issue, conclusion and orders Resulting issue: The remaining substantive issue is therefore whether the "implied undertaking", now to be viewed as imposed by a rule of law[52], given to the Supreme Court by the corporate parties (with which the appellants were associated) extends to the appellants themselves. Did such "undertakings" forbid the disclosure of the relevant documents by the appellants to third parties, without prior leave of the Supreme Court, such that the disclosure amounted to contempt of court?[52]Prudential Assurance [1991] 1 WLR 756 at 764-765; [1991] 3 All ER 878 at 885-886; see joint reasons at [108]. Within the assumptions that are inherent in the way the issue is thus framed, and without going beyond the submissions that are addressed by the parties to that issue, I agree in the conclusions that the joint reasons have expressed, and for the same reasons[53]. [53]Joint reasons at [105]-[129]. Because I also agree with their Honours that the residents' appeal to the Court of Appeal was competent, it follows that I am brought to the outcome that contempt of court on the part of the appellants, as charged, has been proved. I have taken pains to explain my hesitations in reaching that conclusion, given the two points that I have identified but which the appellants omitted, or declined, to argue. It is an unpleasant thing for a judge to be required to reach a conclusion upon a legal basis about which the judge has serious reservations. That is the position I am now in. I have therefore explained my reservations in the hope that, by mentioning them, it may ultimately encourage future attention to their merits. These questions should not be allowed "forever to pass under the radar"[54] simply because parties, presumably due to perceptions of private forensic advantage, choose not to argue them. [54]Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 81 ALJR 1622 at 1652 [135]; 237 ALR 512 at 550; [2007] HCA 38. Order: appeal dismissed: Putting my reservations aside, and deciding this appeal on the issues pleaded and on the traditional or conventional basis, as this Court was asked to do, I agree with the joint reasons that the appeal should be dismissed with costs. Where a corporate litigant is bound by an "implied undertaking" not to use affidavits or witness statements served by another party on it otherwise than for the purpose of the proceedings in which they were prepared, in what circumstances can servants and agents of the litigant who use the affidavits or witness statements in that way be liable for contempt of court? One issue in this appeal is whether either or both of the appellants was bound by such an implied undertaking. The respondents ("the residents") filed a notice of motion and statement of charge against the first appellant alleging the commission of contempt of court. They filed a similar notice of motion and statement of charge against the second appellant. The Supreme Court of New South Wales (Gzell J) dismissed those notices of motion and statements of charge with costs[55]. The Court of Appeal of the Supreme Court of New South Wales by majority (Ipp and Basten JJA; Handley AJA dissenting) allowed appeals by the residents with costs[56]. The Court of Appeal made orders adjudging each appellant to be guilty of the contempt of court alleged in the first charge appearing in the statement of charge against him, and remitted the notices of motion for hearing as to penalty and costs of the hearing at first instance.[55]Street v Luna Park Sydney Pty Ltd [2006] NSWSC 624.[56]Street v Hearne [2007] NSWCA 113.