Khoury v Kirwan (No 4)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	22–23 April, 18 May 2021
DATE OF JUDGMENT:	11 June 2021
CASE MAY BE CITED AS:	Khoury v Kirwan (No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 333

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CONTEMPT OF COURT – Admitted breach of Harman undertaking by plaintiff and another – Disclosure to non-party of documents produced to the court under compulsion of a subpoena – Defendant and subpoenaed party seek punishment for contempt and contemnors apply to purge contempt – Whether contemnors made full and frank disclosure when contending contempt was accidental and unintended – Whether apology adequate – Whether contempt contumacious, alternatively wilful – Hearne v Street (2008) 235 CLR 125.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Ms Jessica Nowell	Ms G L Schoff QC with Ms H Jager	Litton Legal
For the Defendant	Ms S Chrysanthou SC with Mr E Batrouney	Kennedys
For Dr Jeremy Kolt	Mr T Maxwell	Sparke Helmore Lawyers

HIS HONOUR:

Introduction

1. Dr Elie Khoury (‘Khoury’) sued Dr David Kirwan (‘Kirwan’), claiming damages for defamation. The proceeding is fixed for trial. The claim is based on a number of publications, most of which were emails, that circulated amongst the medical community in Albury–Wodonga. Dr Jeremy Kolt (‘Kolt’) was a recipient of some publications.

1. In response to a subpoena served upon him by Khoury, Kolt produced 77 emails to the Prothonotary (‘subpoenaed emails’). Those emails were uplifted by Khoury’s solicitors, Litton Legal, who provided copies of them to Khoury and Ms Jessica Nowell, his partner (‘Nowell’). On instructions from Khoury, Nowell provided copies of the subpoenaed emails to Ramsay Healthcare Pty Ltd (‘Ramsay Health’), which owns and operates the Albury Wodonga Private Hospital (‘AWPH’).

1. The consequences of that disclosure for Kolt were serious. Ramsay Health used some of the subpoenaed emails as a basis for a notice to show cause why his accreditation to treat patients at AWPH should not be cancelled. Such a cancellation, had it occurred and become widely known in the Albury-Wodonga medical community, would have harmed Kolt’s professional reputation.

1. By disclosing the subpoenaed emails to Ramsay Health, Khoury and Nowell breached the implied undertaking more particularly described in Hearne v Street[1] and commonly known as a ‘Harman undertaking’.[2] Simply stated, where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise (specifically including documents produced on subpoena),[3] to disclose documents or information, the party obtaining that disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given, unless it is received into evidence.[4]

   [1](2008) 235 CLR 125 (‘Hearne v Street’).

   [2]Harman v…