Khoury v Kirwan (No 4)

In Khoury v Kirwan, the plaintiff and another individual breached a Harman undertaking by disclosing to a non-party documents that had been produced to the court under the compulsion of a subpoena. The defendant and the subpoenaed party sought punishment for the contempt, while the contemnors applied to purge the contempt. The central legal issues for the court to determine were whether the contemnors had made a full and frank disclosure when arguing that the contempt was accidental and unintended, and whether an apology was sufficient. Additionally, the court needed to decide whether the contempt was contumacious or wilful, with reference to the principles established in Hearne v Street.

The court found that the contemnors had not made a full and frank disclosure, as they had failed to mention the existence of a computer that contained the disclosed documents. The court held that the apology offered by the contemnors was not adequate to purge the contempt. Regarding the nature of the contempt, the court determined that it was not contumacious but rather wilful, as the contemnors had intentionally disclosed the documents. Consequently, the contemnors were found to be in contempt of court, and the court ordered that they purge the contempt by paying a fine.

The final orders of the court were that the contemnors purge the contempt by paying a fine of $5,000 each. The court emphasised the importance of adherence to court undertakings and the need for full and frank disclosure when seeking to purge contempt. The decision underscores the seriousness with which the courts view breaches of undertakings and the necessity for contrite and transparent conduct in applications to purge contempt.