JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KELLY -v- HILTON [No 4] [2023] WASC 282
CORAM: STRK J
HEARD: ON THE PAPERS
DELIVERED : 27 JULY 2023
FILE NO/S: CIV 2228 of 2020
BETWEEN: ALLAN JOHN KELLY
First Plaintiff
ALLAN JOHN KELLY AS TRUSTEE FOR THE KELLY FAMILY TRUST
Second Plaintiff
XGS PTY LTD AS TRUSTEE FOR THE KELLY SUPERANNUATION FUND
Third Plaintiff
DEBNAL PTY LTD
Fourth Plaintiff
AND
JOHN CHARLES HILTON
Defendant
Catchwords:
Practice and procedure - Release from Harman obligation - Whether special circumstances justify the grant of leave
Legislation:
Nil
Result:
Application granted
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Third Plaintiff | : | No appearance |
| Fourth Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | HHG Legal Group |
| Second Plaintiff | : | HHG Legal Group |
| Third Plaintiff | : | HHG Legal Group |
| Fourth Plaintiff | : | HHG Legal Group |
| Defendant | : | Bennett |
Case(s) referred to in decision(s):
Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 273 CLR 235
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Home Office v Harman [1983] 1 AC 280; [1982] 1 All ER 532
Kelly v Hilton [No 2] [2022] WASC 374
Kelly v Hilton [No 3] [2023] WASC 235
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95
Table of Contents
Introduction
Applicable principles
The claims made in this proceeding and context
Discovery
Subpoena to the ASX
Subpoena to ASIC
Purge application
The evidence
The submissions made on behalf of Mr Hilton in support of the second application
Disposition
Conclusion and orders
STRK J:
Introduction
These reasons concern the defendant's second application, referred to and described in Kelly v Hilton [No 3] [2023] WASC 235 [11], [12], [16], [17], [25], [27] ‑ [29] and [34]. These reasons should be read with the reasons for decision delivered on 29 June 2023 in Kelly v Hilton [No 3]. The terms there defined are used in their defined sense in these reasons.
The second application was filed on behalf of Mr Hilton on 21 December 2022, and the scope of relief sought was expanded by the amended minute of proposed orders filed on 22 May 2023. By the second application, Mr Hilton seeks to be released from the obligation not to use documents produced in response to subpoenas issued in this proceeding, documents discovered by the plaintiffs in this proceeding, and documents filed in this proceeding by Mr Kelly, the first plaintiff, in support of the purge application, for a purpose other than in connection with this proceeding. Mr Hilton seeks leave to use the documents in his foreshadowed contempt application against Mr Kelly.
The orders Mr Hilton seeks, as recorded in the amended minute of proposed orders filed on 22 May…
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- Case
- [2023] WASC 282
- Decision Date
CaseChat Overview and Summary
The court held that the documents in question, including those discovered, those produced in response to subpoenas, and those filed in support of the purge application, were subject to the Harman obligation, which restricts the use of such documents for purposes other than the proceeding without leave of the court. Given the defendant's intention to initiate and prosecute the contempt application and the necessity of the documents for that application, the court found that special circumstances had been demonstrated. Consequently, the court granted the defendant leave to use the specified documents in the contempt application, while noting that no findings were made regarding the allegations of improper use of documents by the first plaintiff.
The final orders of the court allowed the defendant to use the specified documents in the contempt application, ensuring that all relevant material would be before the court to enable it to discharge its function effectively.
Orders
Orders of the court
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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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