Kelly v Hilton [No 4] - [2023] WASC 282

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…

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

Case: [2023] WASC 282
Decision Date

CaseChat Overview and Summary

In Kelly v Hilton [No 4], the Supreme Court of Western Australia considered the defendant's application to be released from the obligation not to use documents produced in response to subpoenas, documents discovered by the plaintiffs, and documents filed by the first plaintiff in support of the purge application, for a purpose other than in connection with the proceeding. The defendant sought to use these documents in a foreshadowed contempt application against the first plaintiff. The court examined the applicable principles, the context of the claims, and the evidence presented to determine whether special circumstances justified the grant of leave.

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