Hearne v Street

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.