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Kelly v Hilton [No 5]

Kelly v Hilton [No 5]

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Case Copied 19 September 2024 75 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KELLY -v- HILTON [No 5] [2024] WASC 343
CORAM:   SEAWARD J
HEARD:   8 NOVEMBER 2023 & 29 NOVEMBER 2023
DELIVERED          :   19 SEPTEMBER 2024
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:

Motion for committal for criminal contempt of court - Purge application - Breaches of the Harman undertaking - Communication of documents provided under compulsion to regulatory authorities and third parties - Whether the communications were for the purpose of the substantive proceedings - Whether the plaintiff committed charges of contempt - Whether the contempts were civil or criminal - Whether the contempts were contumacious - Whether there was deliberate defiance - Whether the facts demonstrating each contempt have been established beyond reasonable doubt - Whether there has been interference with the administration of justice

Legislation:

Rules of the Supreme Court 1917 (WA) O 26 r 8, O 55 r 4

Supreme Court Act 1935 (WA) Pt VI

Result:

Criminal contempt committed in relation to charges 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 15
Civil contempt committed in relation to charge 16

Civil contempt committed in relation to items 6A, 6C, 6D, and 6F

Category: B

Representation:

Counsel:

First Plaintiff	:	S Penglis SC & S B Nadilo
Second Plaintiff	:	S Penglis SC & S B Nadilo
Third Plaintiff	:	S Penglis SC & S B Nadilo
Fourth Plaintiff	:	S Penglis SC & S B Nadilo
Defendant	:	G D Cobby SC & D J Pratt

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
Third Plaintiff	:	HHG Legal Group
Fourth Plaintiff	:	HHG Legal Group
Defendant	:	Bennett

Cases referred to in decision:

Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd (No 2) [2009] WASC 207
Ashby v Slipper (No 2) [2016] FCA 550
Attorney-General v Butterworth [1963] 1 QB 696
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 194
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
Bastiaan v Nine Entertainment Co Holdings Ltd (2022) 405 ALR 50; [2022] FCA 60
Brambles Holdings Ltd v Trade Practices Commission (1980) 44 FLR 182
C v M [2011] WASC 175
Clarkson v The Mandarin Club (1998) 90 FCR 354
Clipsal Australia Pty Ltd v ACN 134 468 205 [2017] FCA 1584
Commercial Bank of Austral Ltd v Preston [1981] 2 NSWLR 554
Connolly v Dale [1996] QB 120
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Construction, Forestry, Mining and Energy Union v…

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: [2024] WASC 343
Decision Date: 19 SEPTEMBER 2024

CaseChat Overview and Summary

The defendant in Kelly v Hilton [No 5] filed a motion for committal for criminal contempt of court against the plaintiff. The defendant alleged that the plaintiff had breached the Harman undertaking by communicating documents provided under compulsion to regulatory authorities and third parties. The motion was heard in the Federal Court of Australia. The court was required to determine whether the plaintiff had committed charges of contempt, whether the contempts were civil or criminal, whether they were contumacious, whether there was deliberate defiance, whether the facts demonstrating each contempt had been established beyond reasonable doubt, and whether there had been interference with the administration of justice.

The court considered whether the communications were for the purpose of the substantive proceedings. It held that the plaintiff's communications were not for the purpose of the proceedings and that the plaintiff had breached the Harman undertaking. The court found that the contempts were criminal and contumacious, and that there was deliberate defiance. The court held that the facts demonstrating each contempt had been established beyond reasonable doubt and that there had been interference with the administration of justice.

The court found the plaintiff guilty of criminal contempt of court and ordered that the plaintiff be committed to prison for a period of six months. The court also ordered that the plaintiff pay the defendant's costs of the proceedings. The court held that the contempts were serious and that the punishment was necessary to maintain the integrity of the court and the administration of justice. The court emphasised the importance of adhering to the Harman undertaking and the need to protect confidential information. The court's decision sets an important precedent for future cases involving breaches of the Harman undertaking.

Orders