LaserBond Limited v Hooper

[2025] NSWSC 442

Supreme Court

New South Wales

Medium Neutral Citation:

LaserBond Limited v Hooper [2025] NSWSC 442

Hearing dates:

16 April 2025

Date of orders:

8 May 2025

Decision date:

08 May 2025

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

See [77]

Catchwords:

CONTEMPT — Civil contempt — Breach of undertakings – Where parties entered into binding heads of agreement – Where interlocutory undertakings provided to court never discharged – Whether contempt could be found where undertakings given under heads of agreement overlapped with earlier undertakings given to court

CONTEMPT — Civil contempt – No appearance by alleged contemnor at hearing

CIVIL PROCEDURE – Settlement – Orders under s 73 of the Civil Procedure Act 2005 (NSW) to give effect to a settlement between the parties

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 73

Cases Cited:

Alexander v Crawford [2003] NSWSC 426

Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638

Attorney-General v Times Newspapers Ltd [1992] 1 AC 191

Australian Consolidated Press v Morgan (1965) 112 CLR 483; [1965] HCA 21

Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46

Duncan-Strelec v Tate [2008] NSWSC 1145

Gilbert v Gilbert [1955] St R Qd 245

Gonzales v State Coroner of New South Wales (No 2) [2018] NSWSC 1093

Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170

In Re Clements (1877) 46 LJ Ch 375

In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93

Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92

Melksham v Fraser Island Barge Transport Pty Ltd [2003] 1 Qd R 520; [2002] QCA 218

Novelly v Tamqia Pty Ltd [2024] NSWCA 167

Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40

Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343

Re Group Pty Ltd v Kazal [2017] FCA 1084

Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641

Ronowska v Kus (No 2) [2012] NSWSC 817

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Yu v Yu [2020] NSWSC 1904

Texts Cited:

Professor David Rolph, Contempt (2023, The Federation Press)

Category:

Consequential orders

Parties:

LaserBond Limited ACN 057 636 692 (Plaintiff/Applicant)
Gregory John Hooper (Defendant/Respondent)

Representation:

Counsel:
N Furlan (Plaintiff/Applicant)

Solicitors:
HWL Ebsworth Lawyers (Plaintiff/Applicant)
BlackBay Lawyers (Defendant/Respondent)

File Number(s):

2023/470241

Publication restriction:

Nil

JUDGMENT

1. The defendant, Mr Hooper, was one of the founders and is a former director of the plaintiff (LaserBond). In the latter half of 2023, Mr Hooper seems to have waged a campaign of disparagement against LaserBond and its current management on a social media site for investors. LaserBond commenced these proceedings by Summons in late December 2023. It filed a statement of claim in February 2024 whereby it sought relief under the Australian Consumer Law and in injurious falsehood against Mr Hooper. It also sought urgent interlocutory injunctive relief pending final determination of the proceedings.

2. On 3 January 2024, the application for urgent interlocutory relief came before the duty judge in Equity. On that day, the parties reached an agreement which avoided the need for argument. At the request of the parties, the Court noted undertakings by Mr Hooper that he would refrain from making certain disparaging representations about LaserBond and its current management. The representations which he undertook not to make were those set out in paragraph 5(c) of the summons. The undertakings were expressed to be ‘pending further order of the Court’. LaserBond, through its counsel, gave the usual undertaking as to damages to secure Mr Hooper’s undertakings. The orders also noted, in effect, that the undertakings were offered without admission.

3. In July 2024, after the parties had gone some way down the road of preparing the case for final hearing, they attended a mediation. The mediation was successful. The parties, together with several directors of LaserBond, executed a document entitled ‘Heads of Agreement’ in which they relevantly agreed as follows:

1. The parties would seek orders dismissing the proceedings within seven days of executing a deed. However, they agreed that the Heads of Agreement would bind them immediately upon execution.

2. The parties gave mutual releases from ‘all claims that are the subject of the proceedings’.

3. Mr Hooper gave an undertaking that he would not make the representations set out in paragraph 5(c) of the summons. The content of this obligation was essentially the same as the content of the undertaking given in January 2024, save that this was an undertaking to ‘LaserBond and its directors’ rather than the Court.

4. The solicitors exchanged and all but agreed the terms of a draft deed of settlement, however it was not executed.

5. In the months following settlement, Mr Hooper made posts to two social media sites in which he made representations that arguably included at least some of the representations that were within the scope of his January 2024 undertaking to the Court and also within the scope of his inter-partes undertaking in the Heads of Agreement.

6. LaserBond now seeks orders to punish Mr Hooper for contempt of court on the footing that, despite settlement, Mr Hooper continued to be bound by the January 2024 undertakings.

7. LaserBond also seeks orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) to give effect to the settlement. These orders would (a) require Mr Hooper to execute the deed in the form agreed in correspondence between the parties’ solicitors and (b) grant permanent injunctions to restrain Mr Hooper’s ongoing defiance of his inter-partes undertaking in the Heads of Agreement.

8. For the reasons which follow, I decline to punish Mr Hooper for contempt. I will however grant the relief sought under s 73.

Background facts

9. Mr Hooper was one of the initial directors of LaserBond and was one of the founders of its business, along with his parents Rex and Lilian. He ceased to be a director on 30 June 2020. He continued as a consultant but that role concluded on 24 February 2021. The current CEO is Mr Hooper’s brother, Wayne Hooper.

10. Between about August 2023 and December 2023, there was communication between Mr Hooper and LaserBond about the prospect of Mr Hooper returning to the LaserBond board. Mr Hooper wanted to return but the directors and shareholders of LaserBond did not wish to have him back.

11. HotCopper ( advertises itself as Australia’s largest stock trading and investment forum. It is appropriately described as an investor community. As at the end of 2023, it boasted over seven million users annually. It is free to use and all posts are made publicly available regardless of whether a user has signed up or not. For each stock listed on the Australian Stock Exchange (ASX), HotCopper has a dedicated page that shows market information for that particular stock together with the most recent discussions posted by users about that stock.

12. LaserBond is listed on the ASX and it has a dedicated page on HotCopper.

13. On 22 December 2023 at 1.35PM, Mr Hooper posted a comment on the LaserBond page on HotCopper using the handle ‘Grasshopper59’:

“I’ve been involved with this company since 1992, and in my experienced view, the current situation at our company is very concerning. The chairman, who stepped in following Alan Morton’s resignation, lacks prior experience in such a role. Frankly, his contributions have been underwhelming and haven’t added meaningful value to our operations.

His independence is questionable due to his 15-year tenure, leading to a dynamic where both he and Matthew Twist, CFO, and executive director, seem to be subservient to the CEO in the board room. This is particularly problematic because the CEO, in my experienced opinion, lacks the necessary personality drive, vision, and intestinal fortitude, to propel the company forward. The other board members, unfortunately, don’t bring the requisite experience or talent to drive growth either. In a recent meeting, their limitations were glaringly apparent: Neal came across as just outright arrogant, and Parsons demonstrated a worrying lack of knowledge, brought to my attention because of her arrogant stand concerning the duration of Australian patents. Her inflexibility on this topic, her AGM statement concerning her involvement with BHP’s move into the US, as a reason why we need to be very careful with our push into North America, and her history of numerous board positions only add to my concerns.

Our revenue growth in the last few years can largely be attributed to decisions made before 2020 like the acquisition of QSP in Queensland and the hiring and importation of skilled workers. This suggests that the current leadership has not been instrumental in recent successes.

Furthermore, client relations are suffering. One of our North American customers is so dissatisfied that they’re considering a full refund on their speciality-built cladding system, which is still sitting idle in Smeaton Grange. Additionally, our New Zealand client is still waiting for adequate training, programming and a simple materials list.

These issues underscore a pressing need for a leadership overhaul and a strategic shift in our operational approach. It’s vital to address these challenges swiftly to leverage future growth opportunities, maintain customer satisfaction, and avoid as much as possible the real and obvious reputation repercussions.”

14. There was some communication between the parties but LaserBond was unable to persuade Mr Hooper to remove the 22 December 2023 post. Mr Hooper made some additional posts on the LaserBond page on HotCopper in the final week of December 2023.

15. These proceedings were commenced by summons filed in Court with leave granted by the duty judge on 29 December 2023. The summons sought a range of interlocutory and final relief, including interlocutory orders in the nature of injunctions as follows:

“b. an order that the defendant be restrained by himself his servants and agents from reposting the Post, or other substantially similar post, to the “HotCopper” website, or any other website or otherwise publishing the Post, or other substantially similar post; and

c. an order that the defendant be restrained by himself his servants and agents from making representations to the public to the effect that:

i. the plaintiff’s Chairman lacks the prior experience to perform that role;

ii. the plaintiff’s Chairman’s contributions to the plaintiff have been underwhelming and have not added meaningful value to the plaintiff’s operations;

iii. the plaintiff’s Chairman’s independence is questionable;

iv. the plaintiff’s Chairman is subservient to the plaintiff’s CEO in the board room;

v. the plaintiff’s CFO is subservient to the plaintiff’s CEO in the board room;

vi. the plaintiff’s CEO lacks the necessary personality, drive, vision and intestinal fortitude to propel the plaintiff forward;

vii. the other members of the plaintiff’s Board of Directors do not bring the requisite experience or talent to drive growth of the plaintiff;

viii. Ms Dagmar Parsons lacks the knowledge to properly perform her role as a director of the plaintiff;

xi. the plaintiff’s revenue growth in the past few years can largely be attributed to decisions made before 2020;

x. the plaintiff’s current leadership has not been instrumental in its success;

xi. the plaintiff’s relations with its clients are suffering;

xii. the plaintiff has a client based in North America that is so dissatisfied with the plaintiff that it is considering seeking a full refund on its speciality-built cladding system which is sitting idle;

xiii. the plaintiff has a client based in New Zealand that is waiting for the plaintiff to provide it with adequate training, programming and a simple materials test;

xiv. the plaintiff has a pressing need for a leadership overhaul;

xv. the plaintiff has a pressing need for a strategic shift in its operational approach;

xvi. unless the plaintiff’s leadership changes swiftly, the plaintiff’s future growth opportunities will be limited, its customers will become dissatisfied and its reputation will be harmed;

xvii. the board and senior management of LaserBond is incompetent;

xviii. the board and senior management of LaserBond does not have the appropriate skills; and

xix. Unless there is a change of senior management very soon, the business of LaserBond will adversely affected in a very serious way.”

(errors in original)

16. Similar injunctions were sought on a final basis. Final relief was sought on the basis of claims under the Australian Consumer Law and on the basis of injurious falsehood.

17. Time for service of the summons was abridged by Walton J sitting as the Common Law duty judge and the matter was adjourned to the equity duty list before Slattery J on 3 January 2024 for the purpose of dealing with LaserBond’s application for urgent interlocutory relief. The plaintiff was represented by Mr Furlan of counsel and the defendant was represented by Mr Leather of BlackBay Lawyers. At the hearing, following direction from Slattery J about the appropriate scope of any undertakings, the parties handed up short minutes of order which were as follows:

“Undertakings

1. Upon the plaintiff, through its counsel, giving the usual undertaking as to damages, and pending further order of the court and subject to the notation below the defendant undertakes to the Court:

a. the defendant will not by himself his servants and agents repost the post, dated 22 December 2023, a copy of which is Annexed and marked “A” (Post), or other substantially similar post, to the “HotCopper” website or any other website or otherwise publishing the Post, or other substantially similar post; and

b. the defendant will not by himself his servants and agents make the representations at paragraph 5(c) of the Summons to the public in any serious communication in trade or commerce (and excluding any communication (a) made privately, on any social or informal occasion (b) made confidentially to a legal or other professional adviser and (c) made in these proceedings solely for the purposes of defending these proceedings).

Orders

2. List the proceedings before the Equity Registrar at 9:30am on Wednesday, 7 February 2024.

3. The plaintiff is to file and serve a statement of claim by 7 February 2024.

4. Grant liberty to apply on 24 hours’ notice.

5. Reserve costs.

6. These orders be entered forthwith.

7. Note the plaintiff has read evidence on its application for interlocutory relief on 3 January 2024 disputing the allegations made in the post, and the Court has not yet made any determination in relation to that evidence.”

18. Slattery J made orders in court that day in accordance with the short minutes of order.

19. The matter then proceeded in the usual way. The plaintiff filed and served a statement of claim on 7 February 2024. The defendant filed and served a defence on 6 March 2024.

20. On 18 July 2024, the parties attended a private mediation conducted by the Honourable P.A. Bergin AO SC. Mr Hooper was in attendance with his solicitor, Mr Leather, together with Ms Orlic, also of BlackBay Lawyers. The plaintiff was represented by counsel and solicitors and a number of directors.

21. The proceedings were settled at mediation on the basis of the Heads of Agreement. It is appropriate to set the terms of that document out in full:

“1. The Parties will seek orders dismissing the Proceedings within 7 days of the execution by them of a deed (as referred to in clause 11 below).

2. LaserBond will pay Mr Hooper's costs of the Proceedings in the amount of $35,000 within 7 days of the execution of a deed (as referred to in clause 11 below).

3. The Parties will release one another from all claims that are the subject of the Proceedings and any liability arising from other events occurring from August 2023 to date, including any liability of Mr Hooper in respect of defamation by him of any of the directors of LaserBond.

4. The Parties agree they will not denigrate one-another or publish insults about one another.

5. Mr Hooper undertakes to LaserBond and its directors:

a. He will not by himself his servants and agents repost the post, dated 22 December 2023, a copy of which is Annexed and marked "A" or other substantially similar post; and

b. He will not by himself his servants and agents make the representations at paragraph 5(c) of the Summons filed in the Proceedings to the public in any serious communication in trade or [commerce] (and excluding any communication (a) made privately, on any social and informal occasion or (b) made confidentially to a legal or other professional adviser.

c. He will not otherwise make misleading or deceptive statements or statements likely to mislead or deceive in connection with the company, its affairs and its directors and its management.

6. Mr Hooper agrees to keep confidential all non-public information concerning the company and its affairs however that information has been obtained by him whether as a result of his directorship, his consultancy or otherwise from employees or customers.

7. Mr Hooper agrees not to solicit or otherwise seek to obtain non-public information concerning the company and its affairs from its employees or customers or subsidiaries. In so far as such information comes into his possession, he must keep it confidential and must not use or disclose it.

8. Mr Hooper agrees to refrain from coming onto any premises of LaserBond or its subsidiaries, other than by prior arrangement with Wayne Hooper.

9. The terms of the Parties' settlement in this Heads of Agreement and the deed referred to in paragraph 11 below to be kept confidential and not to be disclosed.

10. The parties agree that the obligations under clause 9 shall not prevent

a. Any party from disclosing information referred to in clause 9 to:

i. Its lawyers;

ii. Its auditors;

iii. Its shareholders;

iv. Its Related Bodies Corporate; and

v. Any person benefited by this Heads of Agreement

Provided that the parties listed in clause 10(a)(i) to 10(a)(v) agree before disclosure to them to keep such information confidential.

b. Any party or person benefited by this Heads of Agreement disclosing any fact or matter which is in the public domain;

c. Any party or person benefited by this Heads of Agreement disclosing the existence and/or contents of this Heads of Agreement for the purposes of:

i. Relying on this Heads of Agreement in relation to its terms;

ii. Enforcing this Heads of Agreement;

iii. Disclosure for compliance with any stock exchange listing requirement; and/or

iv. Disclosure required by law or for insurance.

11. These Terms of Settlement will be immediately binding once executed by the Parties. The Parties will more formally record their settlement agreement in a deed on terms which are not inconsistent with this Heads of Agreement but may contain additional details and terms not set out in this Heads of Agreement, and they agree to cooperate with one another and do all such things as may be necessary to prepare and execute such a deed within 14 days.

12. In this Heads of Agreement:

a. Proceedings means Supreme Court of NSW Equity Division General List proceedings numbered 2023/00470241.”

22. The solicitors for the parties duly exchanged and commented on a draft deed. The plaintiff’s solicitors forwarded a draft on 2 August 2024. They received a response with minor tracked changes on 15 August and then sent a revised draft with two additional minor edits on 20 August. The solicitors for the plaintiff have to date received no response to their 20 August email.

23. In the meantime, Mr Hooper began to post further public comments on LaserBond’s HotCopper page. One such comment was made on 20 July 2024 and it shows that Mr Hooper had returned to his theme of criticising the management of the company. It was a comment on a thread concerning the current share price and simply read: ‘Their Silence is Deafening! A ship without drive cannot be steered and is Dead in the Water!!’

22. This post prompted the solicitors for LaserBond to contact the solicitors for Mr Hooper on 7 August 2024. There was a discussion between Ms Reynolds, an employed solicitor at HWL Ebsworth (HWLE), and Ms Orlic of BlackBay Lawyers in which Ms Reynolds pointed out that:

“Mr Hooper has already entered a binding agreement not to make such posts and we think that he has breached this agreement.”

25. There was no suggestion at that point that either the plaintiff or anyone at HWLE considered the 20 July 2024 post to be a breach of the interlocutory undertaking.

26. Starting on 14 September 2024, Mr Hooper made a series of further posts on HotCopper, many of which were highly derogatory of the plaintiff and its management. Posts were made on September 14, 17, 23 (several posts), 24, 25 (two posts) and 27. Only two of these are the subject of the contempt charge.

27. On 17 September 2024 at 10.01AM, Mr Hooper made the following post (the first HotCopper post):

“LaserBond v Gregory Hooper

The claim asserts that I, in trade or commerce, engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive in contravention of section 18 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), through the publication of my post concerning the LaserBond board.

In my opinion, this claim is just another example of the board’s incompetence. They have frivolously spent circa 100k on this baseless attempt to silence the individual who founded the company, presided over its development, oversaw and worked in R&D and production, and developed the processes and technologies that have underpinned LaserBond’s success.

I would like to take this opportunity to offer my apologies to Matthew Twist. I have no personal grievances against him and believe he has done an excellent job as CFO of LaserBond since 2007/08. However, I would like to clarify my earlier statement regarding Matt; because he reports directly to the CEO in his capacity as CFO, I believe it was inappropriate for him to be appointed to the board.

I will also admit to lashing out with the post in question. My opinions have not changed, but in hindsight, it was a reactive response. Betrayal is a very difficult pill to swallow.”

28. On 25 September 2024 at 3.13PM, Mr Hooper made a further and much longer post in response to an earlier post by another user (the second HotCopper post). That other user seems to have specifically asked Mr Hooper to give an explanation about his dispute with the company. Mr Hooper’s post contained material that arguably carried at least some of the representations that were the subject of his undertakings.

29. On 27 September, Ms Reynolds made a request in the NSW Registry Online Court for the directions hearing listed on 1 October 2024 to be adjourned, which she explained as follows:

“The Plaintiff is seeking orders that the directions are adjourned for 3 weeks on the basis that the Plaintiff intends on filing a motion for contempt and take steps to enforce a settlement and requires time to file with the Court the necessary documentation.”

30. The prospect of prosecuting Mr Hooper for contempt had not been raised with Mr Hooper’s solicitors prior to this time. Shortly thereafter, Mr Hooper removed almost all of the posts he had made between 14 and 27 September, including the first Hotcopper post and the second HotCopper post. There is no evidence as to why he removed the posts. Two of his other posts made during this period remain on the website, but no complaint is made about them.

31. In addition to his activity on HotCopper, Mr Hooper made several posts on LinkedIn. In September 2024, someone on behalf of LaserBond published a post on LaserBond’s LinkedIn page. The post congratulated a LaserBond employee for completing an engineering qualification. On 13 October 2024, Mr Hooper published two comments on LaserBond’s post. One of these (the LinkedIn post) was the subject of the third contempt charge, and was as follows:

“While here, Marty, I want to take this opportunity to sincerely apologise for the reprehensible way you’ve been treated by the current management at Laserbond. Their deceit and manipulation pushed you to a point where resignation felt like the only option. It pains me deeply to witness the company I founded being steered toward ruin by senior management’s inexperience, self-interests, and immoral behaviour. Sadly, it does appear that this fish is rotting from the head.”

32. Mr Hooper made further posts on LinkedIn on 15 October but no complaint is made about these.

Procedural background

33. On 21 October 2024, LaserBond filed a notice of motion and a statement of charge. The notice of motion was supported by an affidavit of Ms Reynolds. Ms Reynolds said in paragraph [3] of that affidavit that LaserBond would rely on the principal affidavit and exhibit that had been relied on in support of the original application for urgent interlocutory relief in December 2023.

34. The notice of motion seeks (a) declarations that Mr Hooper is guilty of a contempt of court by reason of making the two HotCopper posts and the LinkedIn post and (b) orders pursuant to s 73 of the Civil Procedure Act requiring Mr Hooper to execute the draft deed and also permanently restraining him from making further publications in breach of the Heads of Agreement.

35. So far as contempt is concerned, the declaration sought in relation to each post is that Mr Hooper ‘wilfully breached his undertaking to the Court…and is guilty of a contempt of court’. LaserBond seeks orders that ‘there be verdict on Charges 1 to 3 of the Statement of Charge’.

36. The statement of charge identified three charges, one for each of the posts. In each case, it was stated that the post was ‘a serious communication’, that it included certain representations, that it was made to the public, that it was made in trade or commerce and that Mr Hooper ‘made the representation in wilful disobedience of his undertaking to the Court.’

37. The notice of motion and affidavit of Ms Reynolds were served on BlackBay Lawyers and the evidence satisfies me that Mr Hooper was provided with these documents. He has also been informed about the progress of the notice of motion, including procedural orders for the filing of evidence. However, Mr Leather explained in an affidavit that he has had continuing difficulties obtaining instructions from Mr Hooper. He has made numerous attempts to contact him for the purpose of obtaining instructions in relation to the notice of motion but has had no success. This is despite the fact that in November 2024 Mr Hooper told Mr Leather that he (Mr Hooper) intended to file and serve evidence in relation to the notice of motion.

38. On 21 March 2025, out of an abundance of caution, LaserBond caused the notice of motion, statement of charge, affidavit of Ms Reynolds and the order setting the motion down for hearing to be personally served on Mr Hooper at his home. I am satisfied that the documents were duly served on that date. I am in any event satisfied that these documents (save for the order listing the matter for hearing) had already been brought to Mr Hooper’s attention by Mr Leather.

39. When the matter was called, Mr Hooper was not in attendance. Mr Gasic of BlackBay Lawyers appeared but explained that although still on the record, BlackBay Lawyers had been unable to contact or obtain any instructions from Mr Hooper. Mr Gasic very courteously remained for the hearing but was understandably in no position to make any submissions.

40. It is ordinarily highly undesirable for a charge of contempt to proceed in the absence of the alleged contemnor: Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46. One reason for this is that, as I will explain, the Court has a discretion as to whether to punish a person for a contempt and there are circumstances in which it is appropriate for the contemnor to purge their contempt by giving an apology or by giving some assurance or taking some action that avoids the necessity to proceed with a charge. A contemnor should have the opportunity to do so up until the Court decides to proceed to hear the contempt charge. It is also ordinarily necessary to be sure that the contemnor knows exactly the case that is put against them and has an opportunity to answer the charge. Even in cases of civil contempt it is appropriate for the charge to be read to the defendant.

41. Nevertheless, in circumstances where it was quite clear that Mr Hooper had been served with all relevant material, and where it was equally clear that serious but unsuccessful efforts had been made by his own solicitor to secure his attendance, I was content to proceed to hear the application in Mr Hooper’s absence. This decision was informed by an authority relied on and handed to me by the solicitor for the plaintiff: Ronowska v Kus (No 2) [2012] NSWSC 817. In that decision, Pembroke J heard contempt proceedings in the absence of the contemnor. He did so on the basis of a finding that the contemnor, through his conduct, had voluntarily waived his right to be present at the hearing. The contemnor had deliberately evaded personal service whilst at the same time communicated directly with Pembroke J’s chambers. There had also been a previously adjourned hearing.

42. For reasons I will now explain, and despite the thoughtful submissions of Mr Furlan who appeared for LaserBond, I decline to punish Mr Hooper for contempt. If the contrary had occurred and, following the hearing and my consideration of the materials, I was in any way minded to make a finding of contempt against Mr Hooper, I would not have done so without first insisting on Mr Hooper’s attendance before the Court to enable him to answer the charges. Proceedings in which a conviction for contempt is sought should only be heard ex parte in ‘an extraordinary case’ (Doyle v Commonwealth at 518-519; Professor David Rolph, Contempt (2023, Federation Press) at 762). Despite my satisfaction that Mr Hooper had been personally served with the relevant documents and was aware of the contempt hearing yet failed to attend, I do not believe that the circumstances here were of such an extraordinary nature to permit a finding of contempt in his absence.

43. In my view, the appropriate course in that case would be to issue a bench warrant for the contemnor to be brought to Court and answer the case before them, consistent with the decisions of the Court of Appeal in Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638 and Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 (see also Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343).

Civil Contempt

44. LaserBond summarised the principles to be applied in an application to punish a person for contempt where the conduct involves breach of a court order or undertaking as follows.

45. First, the giving of an undertaking to the Court is equivalent to an injunction. Conduct that involves breach of an undertaking may be punishable as a contempt: Gonzales v State Coroner of New South Wales (No 2) [2018] NSWSC 1093 at [12]-[14]; In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93 at [52].

46. Next, the breach of an undertaking is ordinarily a civil and not a criminal contempt: Novelly v Tamqia Pty Ltd [2024] NSWCA 167; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 530.

47. The elements of civil contempt must be proven beyond reasonable doubt: Witham v Holloway.

48. In the case of contempt arising from the breach of an undertaking, the following additional principles apply:

1. It must be established that the terms of the undertaking were clear, unambiguous and capable of compliance: In the matter of Jimmy’s Recipe Pty Ltd.

2. It is not necessary to prove that the contemnor had knowledge of their undertaking: Alexander v Crawford [2003] NSWSC 426 at [33]-[35]; Duncan-Strelec v Tate [2008] NSWSC 1145 at [17]-[18]; In the matter of Jimmy's Recipe Pty Limited at [52]. It is also not necessary to serve a copy of the undertaking with a copy of penal notice on the party bound: Alexander v Crawford at [35]-[39].

3. There is no requirement to prove that the contemnor intended to breach the undertaking. All that is required is that the contemnor intended to do the action constituting the breach: Re Group Pty Ltd v Kazal [2017] FCA 1084 at [73].

4. Enough must be proven for the Court to conclude that the action or inaction said to constitute the breach was deliberate and not casual, accidental or unintentional: Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [64].

49. These principles may be accepted at a level of generality. However, it is also necessary to bear some additional matters in mind.

50. The undertaking given by Mr Hooper on 3 January 2024 was an interlocutory undertaking. The notation to which the undertaking was subject made clear that it was given without admission as to the substantive issues in dispute, pending resolution of those substantive issues. In Australian Consolidated Press v Morgan (1965) 112 CLR 483; [1965] HCA 21, Barwick CJ described a motion to punish a party for contempt of such an undertaking as a ‘suit for what was in substance the enforcement for [the applicant’s] own benefit of the undertaking given to the Court for their protection pending the hearing of the suit’ (at 489). Windeyer J described the undertaking in that case as ‘a purely interlocutory undertaking’ (at 496).

51. The undertakings to the court – being Mr Hooper’s undertaking as well as LaserBond’s concomitant undertaking as to damages – were procedural in nature, designed to safeguard the parties’ rights on a without prejudice basis until the determination of the dispute. As such, LaserBond was entitled to waive compliance with Mr Hooper’s undertaking. In Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217, Lord Oliver of Aylmerton explained that a civil contempt is punishable by the Court ‘at the instance of the party for whose benefit the order was made and which can be waived by him’. As Professor Rolph put it in Contempt at 152, ‘[t]he aggrieved party is not obliged to complain about another person’s non-compliance with a court order, injunction or undertaking.’

52. A related proposition emerges from cases such as Gilbert v Gilbert [1955] St R Qd 245 and Melksham v Fraser Island Barge Transport Pty Ltd [2003] 1 Qd R 520; [2002] QCA 218. Where parties enter into an agreement or arrangement after consent orders are made, the existence of the later agreement or arrangement may have an effect on the availability of the consent order to found a complaint of contempt. In Gilbert v Gilbert, Townley J said at 249:

“In my opinion where there is a judgment or order, particularly for the payment of money, the parties to the proceedings in which the judgment is given or order made, may by agreement so vary the terms or effect of that judgment or order that a court would decline to enforce it according to its original tenor by giving leave to issue a writ of attachment.”

53. Whether the later arrangement does have such an effect will depend on the circumstances of the particular case: for example, see Melksham v Fraser Island Barge Transport Pty Ltd at 525; see also Prof Rolph, Contempt at 546.

54. In the present case, these considerations are relevant in two ways. First, they inform the relationship between the undertakings given on 3 January 2024 and the immediately binding heads of agreement reached on 18 July 2024. For the charge of contempt to succeed, it must be clear that the interlocutory undertakings survived the final settlement of the proceedings as expressed in the Heads of Agreement. Secondly, if those undertakings did survive and if they were breached, it will be appropriate to take these same matters into account in deciding whether the Court should exercise its power to punish Mr Hooper’s non-compliance by convicting him of contempt in any event.

Was Mr Hooper still bound by the interlocutory undertaking?

55. The Heads of Agreement was entered into on 18 July 2024 and became immediately binding on the parties. Clause 11 made clear that the parties intended the operative clauses, including the mutual releases in clause 3, to take effect upon execution. The fact that the parties intended to enter into a deed ‘to more formally record their settlement agreement’ was expressly stated not to affect this fact. Nor was settlement made conditional on the Court making any particular order in the future.

56. LaserBond submitted that the 3 January 2024 orders remained on foot until such time as the Court made an order dismissing the proceedings following execution of the deed. That may be so, but the proposition that Mr Hooper remained bound by the undertaking during that period is difficult to reconcile with the language of the Heads of Agreement as a whole and with clause 3 in particular. The parties did not consider that the underlying claims which were the subject of the proceedings should remain in dispute pending the making of a final order. Rather, they sought and obtained mutual releases that put an immediate end to the litigation even prior to the making of final orders. The Heads of Agreement could have been relied on as a plea in bar to any and all claims ‘that are the subject of the proceedings and any liability arising from other events occurring from August 2023 to date’. These were sweeping releases.

57. It is also important to recall the notation to which Mr Hooper’s undertaking was subject. Although not quite expressed as being ‘without admission’, that was its substance. The undertaking was intended to operate in a way that preserved Mr Hooper’s rights in relation to the subject matter of the dispute until those rights could be determined on a final basis. But by the time of the conduct which LaserBond now seeks to punish as contempt, that dispute had been conclusively resolved on the terms of the Heads of Agreement. It is difficult to know how the undertaking could have operated ‘subject’ to the notation after 18 July 2024 because, from then on, Mr Hooper’s and LaserBond’s rights in relation to the dispute were entirely resolved on the basis of the Heads of Agreement.

58. The substantive obligations assumed by Mr Hooper in the Heads of Agreement were twofold. He undertook to LaserBond and its directors (who were not parties to the litigation) not to ‘denigrate or publish insults about’ the other parties to the deed. He also gave the undertakings in clauses 5(a) to (c) which overlap almost entirely with the interlocutory undertaking given on 3 January 2024.

59. This, coupled with the fact that the Heads of Agreement contained the sweeping, immediately-effective, mutual releases to which I have referred, suggests that the parties considered their rights in relation to the subject of the litigation to be governed by the Heads of Agreement on and from the time it was executed. In substance, LaserBond gave up all existing claims against Mr Hooper in return for the inter-partes undertakings contained in the Heads of Agreement. In my view, the claims which the parties released included any claims to enforce compliance with the interlocutory undertakings.

60. I therefore dismiss all three charges.

Alternatively, would the Court punish Mr Hooper for contempt?

61. If I am wrong in my conclusion about the ongoing operation of the 3 January 2024 undertakings, it is appropriate to consider whether Mr Hooper’s conduct was such as to warrant the invocation of the Court’s extraordinary jurisdiction to punish for contempt at all. It may, in fact, be appropriate to consider this question even before dealing with or at the same time as the substance of the application: see Prof Rolph, Contempt at 28.

62. The conduct in question was the publication of three online posts in relation to a publicly listed company. Two of them were on HotCopper and remained in place for less than two weeks before being voluntarily removed. There is no evidence as to how many people viewed them. The third post was on LinkedIn. There was no evidence as to whether it remained online at the date of the hearing, nor as to how many people may have viewed it in the meantime.

61. The making of these three posts was almost certainly a breach of the Heads of Agreement. As such, LaserBond appears to be entitled to damages for breach of the undertakings which it secured in settlement of the proceedings. I cannot see why its entitlement to damages would be affected by the fact that the deed contemplated by clause 11 has not yet been entered into.

62. In In Re Clements (1877) 46 LJ Ch 375 at 383, Sir George Jessel MR said:

”Therefore it seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of the Judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if not other pertinent remedy can be found.”

65. There are innumerable statements to like effect in the caselaw, both in the UK and Australia. Many of them are collected at pages 11 to 13 of Prof Rolph, Contempt. Authority well and truly justifies the learned author’s observation at p 11 that the ‘court’s power to deal with a person for contempt should only be exercised where there is a clear case falling for swift and decisive action. Contempt of court should be the last resort, not the first.’

66. The clear availability of an alternative remedy, combined with the fact that the substantive dispute in respect of which the undertaking was given had been finally concluded as between the parties, as well as the fact that at least two of the three offending posts had already been removed, lead me to conclude that this is not a case in which it would have been appropriate for the Court to exercise its power to punish Mr Hooper for contempt. I would have declined to do so even if the charges had been made out.

Section 73

67. LaserBond next seeks orders to give effect to the settlement embodied in the Heads of Agreement. The relief it seeks is twofold. First, it seeks orders requiring Mr Hooper to execute and deliver the deed. In this respect, paragraphs 7(a), (b) and (c) of the notice of motion seek that the Court:

“a. Declares that the parties reached a binding settlement of these proceedings as recorded in a document styled ‘Heads of Agreement’ dated 18 July 2024.

b. Orders the Defendant to execute and return to the Plaintiff within 7 days of these orders, the deed emailed by the Plaintiff’s solicitors to the Defendant’s solicitors on 20 August 2024.

c. Orders that the Plaintiff to pay to the Defendant the sum of $35,000 within 7 days of his compliance with order 5(b).”

68. Secondly, LaserBond seeks permanent injunctions against Mr Hooper in a form that reflects all of his obligations in the Heads of Agreement. In this respect, paragraph 7(d) of the notice of motion seeks that the Court:

“Orders the Defendant, by himself, his servants and agents, not to:

i. repost the post, dated 22 December 2023, a copy of which is Annexed and marked “A” or other substantially similar post; and

ii. make the representations at paragraph 5(c) of the Summons filed in these proceedings on December 2023 to the public in any serious communication in trade or [commerce] (and excluding any communication (a) made privately, on any social and informal occasion or (b) made confidentially to a legal or other professional adviser);

iii. otherwise make misleading or deceptive statements or statements likely to mislead or deceive in connection with the Plaintiff, its affairs and its directors and/or its management;

iv. denigrate or publish insults about the Plaintiff;

v. use or disclose, without the Plaintiff’s consent, any non-public information concerning the Plaintiff and its affairs however that information has been obtained by him whether as a result of his directorship, his consultancy or otherwise from employees or customers;

vi. solicit or otherwise seek to obtain non-public information concerning the Plaintiff and its affairs from its employees or customers or subsidiaries; and

vii. come onto any premises of the Plaintiff or its subsidiaries, other than by prior arrangement with the Plaintiff’s Chief Executive Officer.”

69. The Court has power to make orders declaring the existence of a settlement agreement and requiring a party to do the things necessary to give effect to that agreement: s 73 Civil Procedure Act. I am comfortably satisfied that the parties settled proceedings on the basis of the Heads of Agreement. However, the evidence shows that Mr Hooper has failed to execute and deliver the deed, as he is required to do. It is appropriate in these circumstances for the Court to make orders in accordance with paragraphs 7(a), (b) and (c) of LaserBond’s notice of motion.

70. The question of whether the Court should make the orders sought in paragraph 7(d) is a little more complicated.

71. The difficulty is that the whole gist of the Heads of Agreement was that LaserBond gave up its claim to permanent injunctions in return for the inter-partes undertakings and other promises. In a sense, permanent injunctive relief in the same terms as the Heads of Agreement would revive (and would in fact go beyond) the final relief which LaserBond was originally seeking in the proceedings. In that sense, the orders would seem to set the settlement at nought.

72. LaserBond submitted that it is appropriate for the Court to make an order under s 73 that amounts to an order for specific performance of the terms of settlement. It points out that the section, at least in significant part, is designed to avoid a multiplicity of proceedings because it allows a party to enforce a settlement in the same proceedings without having to start fresh enforcement proceedings. I was referred in this respect to the reasons of Basten JA in Gorczynski v Bendigo and Adelaide Bank Ltd [2016]NSWCA 170 at [6]. I was also referred to Yu v Yu [2020] NSWSC 1904 where, at [121], Williams J made injunctive orders for (in effect) specific performance of a settlement agreement.

73. The bulk of Mr Hooper’s obligations in the Heads of Agreement are in the nature of covenants not to disparage LaserBond or its directors. The covenants are in some respects indistinct, especially in applying only to those representations made ‘in serious communications’. Real questions could arise as to the meaning of that expression, particularly in circumstances where it is clearly intended to mean something other than ‘in trade or commerce’. In Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40 (Orleans Investments), the Court of Appeal considered a challenge to injunctions which had been granted in terms that mirrored negative non-disparagement covenants contained in a deed. Those covenants, like the terms of the Heads of Agreement here, were somewhat indistinct in their scope. At [99] and following, Giles JA explained that the primary judge had been correct to grant the injunctions despite these difficulties. At [106], he said:

“In the present case the appellants’ obligations were undertaken with legal advice and, as earlier described, in resolution of a bitter conflict and with acceptance of the risk of unintended or unknowing breach of cl 10.1(a). A court should not too readily decline to require that the appellants perform their obligations solemnly undertaken, and it would not be satisfactory to leave MindShare to its remedy in damages for any future breach: loss from harm or injury to reputation would be difficult to assess, and under the deed MindShare is entitled to have the appellants refrain from conduct which might harm or injure reputation or name, not just conduct which does harm or injure reputation or name.”

74. I am satisfied that this is a case where it is appropriate to grant the relief sought. The interests being protected are largely reputational and the provisions of the agreement relating to that matter are the very provisions which Mr Hooper has demonstrated a willingness to flout. It is inevitable that if I refuse relief under s 73, LaserBond will bring fresh proceedings seeking almost identical relief based on the same evidence. Should it do so and if Mr Hooper again chooses not to appear, there is a good prospect that it would be entitled to that relief.

75. I take into account that the orders sought, like the Heads of Agreement itself, operate by reference to somewhat indistinct concepts. However, they are the terms of the bargain which the parties entered into to bring finality to their dispute. As in Orleans Investments, it is appropriate to grant relief in terms that holds the parties to their bargain.

76. As to costs, LaserBond has failed on the contempt issue but succeeded on the s 73 issue. I consider it appropriate for it to have half of its costs of the notice of motion.

ORDERS

77. The orders of the Court will therefore be as follows:

1. Pursuant to section 73 of the Civil Procedure Act 2005 (NSW), the Court:

1. Declares that the parties reached a binding settlement of these proceedings as recorded in a document styled ‘Heads of Agreement’ dated 18 July 2024.

2. Orders the defendant to execute and return to the plaintiff within 7 days of these orders the deed emailed by the plaintiff’s solicitors to the defendants’ solicitors on 20 August 2024.

3. Orders the plaintiff to pay to the defendant the sum of $35,000 within 7 days of his compliance with order 1(b) above.

4. Orders the defendant, by himself, his servants and agents, not to:

1. repost the post, dated 22 December 2023, a copy of which is annexed and marked “A” or other substantially similar post; and

2. make the representations at paragraph 5(c) of the Summons filed in these proceedings on 29 December 2023 to the public in any serious communication in trade or commerce (and excluding any communication (a) made privately, on any social and informal occasion or (b) made confidentially to a legal or other professional adviser);

3. otherwise make misleading or deceptive statements or statements likely to mislead or deceive in connection with the plaintiff, its affairs and its directors and/or its management;

4. denigrate or publish insults about the plaintiff;

5. use or disclose, without the plaintiff’s consent, any non-public information concerning the plaintiff and its affairs however that information has been obtained by him whether as a result of his directorship, his consultancy or otherwise from employees or customers;

6. solicit or otherwise seek to obtain non-public information concerning the plaintiff and its affairs from its employees or customers or subsidiaries; and

7. come onto any premises of the plaintiff or its subsidiaries, other than by prior arrangement with the plaintiff’s Chief Executive Officer.

2. The proceedings are otherwise dismissed.

3. The defendant is to pay 50% of the plaintiff’s costs of the notice of motion filed 21 October 2024.

4. A copy of these orders together with my reasons be served personally on the defendant.

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Decision last updated: 08 May 2025