Kelly v Hilton [No 6]

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KELLY -v- HILTON [No 6] [2025] WASC 43

CORAM:   SEAWARD J

HEARD:   10 DECEMBER 2024

DELIVERED          :   14 FEBRUARY 2025

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:

Contempt - Contempt of court - Communication of documents provided under compulsion to regulatory authorities and third parties - Breach of Harman undertaking - Penalty - Appropriate penalty - Purge application

Legislation:

Rules of the Supreme Court 1971 (WA) O 55 r 4, r 7, r 8
Supreme Court Act 1935 (WA) s 16
Sentencing Act 1995 (WA) s 6

Result:

Plaintiff to pay a total fine of $30,000

Category:    B

Representation:

Counsel:

First Plaintiff : S B Nadilo
Second Plaintiff : S B Nadilo
Third Plaintiff : S B Nadilo
Fourth Plaintiff : S B Nadilo
Defendant : 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:

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Attorney General v Morrison [No 3] [2022] WASC 323

Circuit Finance Australia v Sobbi [2010] NSWSC 912

CJ v Flintshire Borough Council [2010] ECWA Civ 393

Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375

Dental Board of Australia v Traianou [2011] WASC 293

Gap Constructions Pty Ltd v Vigar Pty Ltd [2011] NSWSC 1061

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

Hamersley Iron Pty Ltd v Lovell (Unreported, BC9803318, 16 July 1998)

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90

Kelly v Hilton [No 5] [2024] WASC 343

Khoury v Kirwan (No 4) [2021] VSC 333

Pacific Basin Exploration Pty Ltd v XLX (NL) [1985] WAR 11; (1984) 2 IPR 489

Peterson v Ceccon [2023] WASC 488

Peterson v Ceccon [No 2] [2024] WASC 387

Porter v Steinberg [No 2] [2019] WASC 473

R v T [2022] WASCA 34; (2022) 58 WAR 77

State of Western Australia v Rayapen [2023] WASCA 55

The State of Western Australia v Galati [No 4] [2017] WASC 162

United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323

Wood v Staunton [No 5] (1996) 86 A Crim R 183

Yap v Matic [No 7] [2023] WASC 55

SEAWARD J:

Introduction

  1. In Kelly v Hilton [No 5] (liability reasons),[1] I considered two applications regarding the conduct of Mr Allan John Kelly…

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Details
Case
[2025] WASC 43
Decision Date

CaseChat Overview and Summary

In Kelly v Hilton [No 6], the dispute involved a breach of a Harman undertaking, a type of confidentiality order in Australian court proceedings. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was to determine the appropriate penalty for the defendant, Hilton, who had breached the Harman undertaking by communicating documents provided under compulsion to regulatory authorities and third parties.

The court considered various factors in determining the penalty, including the nature of the breach, the defendant's understanding of the Harman undertaking, and the steps taken to mitigate the breach. The defendant had acted hastily and did not fully comprehend the implications of the Harman undertaking; had they understood it properly, they would have acted differently. Hilton took immediate steps to prevent further publication of the documents once notified of the plaintiff's objection and provided an apology to the court.

The court concluded that no further penalty should be imposed on Hilton, following the precedent set in Pacific Basin Exploration Pty Ltd v XLX (NL), where similar circumstances resulted in no further penalty. The court found that Hilton's actions, while in breach of the Harman undertaking, did not result in significant damage and were mitigated by the prompt actions taken to stop the further publication of the documents.

The court made no further orders, considering the circumstances and the actions taken by Hilton to address the breach.

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

In Pacific Basin Exploration Pty Ltd v XLX (NL),[29] the contemnor (a director of the defendant) sent an expert report prepared using material produced under discovery in court proceedings (and subject to an undertaking of confidentiality by the defendant's counsel) to several stock exchanges and the Financial Times. When the contemnor was notified by the plaintiff that they objected to the disclosure, the contemnor took immediate steps to notify those entities to ensure there was no further publication of the expert report. The court ordered that there be no further penalty imposed on the contemnor. Factors relevant to this decision included that the contemnor sent the disclosures in haste and did not fully understand the Harman undertaking; had the contemnor properly understood, he would have acted differently; the contemnor provided an apology to the court and took immediate steps to stop the further publication of the expert report such that no damage was suffered.[29] Pacific Basin Exploration Pty Ltd v XLX (NL) [1985] WAR 11; (1984) 2 IPR 489. The parties also referred the court to a number of penalty decisions which do not concern a failure to comply with the Harman undertaking, but rather a failure to comply with orders of the court or undertakings given. Various examples exist of this nature see, for example, Peterson v Ceccon,[30] Peterson v Ceccon [No 2],[31] Yap v Matic [No 7],[32] R v T,[33] Gap Constructions Pty Ltd v Vigar Pty Ltd,[34] Attorney General v Morrison [No 3].[35][30] Peterson v Ceccon [2023] WASC 488.[31] Peterson v Ceccon [No 2] [2024] WASC 387.[32] Yap v Matic [No 7][2023] WASC 55.[33] R v T [2022] WASCA 34; (2022) 58 WAR 77.[34] Gap Constructions Pty Ltd v Vigar Pty Ltd [2011] NSWSC 1061.[35] Attorney General v Morrison [No 3] [2022] WASC 323. In R v T,[36] the Court of Appeal considered an appeal from a sentence imposed under the Family Law At 1997 (WA) following a finding of guilt on 14 counts of contempt. These counts concerned transferring money and otherwise dealing with property contrary to an interim property order and an injunction restraining the appellant from dealing with certain property. A global sentence of three years ten months imprisonment was set aside as being disproportionate to the offending conduct when considered as a whole and therefore unreasonable or plainly unjust. A term of imprisonment of two years and three months imprisonment was substituted. Factors relevant to the sentencing process included the sustained and persistent defiance of the authority of the Family Court over a period of approximately three years; the motive for the offending behaviour being to frustrate the respondent's application for property orders and to render the exercise of the court's powers futile; the use of false entries in the bank records in an attempt to obfuscate and confuse; the lack of any attempts, even after conviction, to purge the contempts; the lack of any mitigating factors of significance save for the appellant's prior to good character; and the importance of general and personal deterrence. [36] R v T [2022] WASCA 34; (2022) 58 WAR 77.