Street & Ors v Hearne

The appeal concerned allegations of contempt of court brought by the appellants, Street & Ors, against Mr Hearne and Mr Tierney. The dispute arose from the transmission of documents, specifically an affidavit and a noise impact assessment report, which had been filed in separate proceedings (the Main Proceedings). The appellants contended that Mr Hearne and Mr Tierney had used these documents for a purpose unrelated to the Main Proceedings, thereby breaching an implied undertaking to the court. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appeal from the acquittal of Mr Hearne and Mr Tierney by Gzell J was competent, and whether the implied undertaking that arises in litigation, in respect of documents served by one party on another, extended to servants and agents of a litigant and applied to the specific documents in question. The court was also required to consider the distinction between civil and criminal contempt in the context of the appeal's competency.

The Court of Appeal held that the appeal was competent, finding that the contempts alleged were civil in nature. The court affirmed that the implied undertaking, which is an obligation imposed by law rather than a voluntary promise, applies to documents such as witness statements and expert reports that are produced for the purposes of litigation. The court reasoned that this undertaking extends to the acts or omissions of a corporation's servants and agents acting in that capacity, and that a breach by such individuals could constitute contempt.

The Court of Appeal upheld the appeal, setting aside the orders of Gzell J. In their place, the court adjudged Mr Hearne and Mr Tierney guilty of contempt in relation to the first charge. The notices of motion were remitted to Gzell J for a hearing on penalty and to determine costs for the initial hearing. Mr Hearne and Mr Tierney were ordered to pay the costs of the appeal and were granted certificates under the Suitors Fund Act 1951 (NSW) for those costs.