Peter Hearne and Anor v Joan Street and Ors

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Kirby J,Hayne,Heydon,Crennan JJ
• Judgment Date: 06 August 2008
• Neutral Citation: 2008-0806 HCA B,[2008] HCA 36
• Docket Number: S123/2008
• Date: 06 August 2008

[2008] HCA 36

HIGH COURT OF AUSTRALIA

Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ

S123/2008

Peter Hearne and Anor

Appellants

and

Joan Street and Ors

Respondents

Representation

D F Jackson QC with T G R Parker SC for the appellants (instructed by Clayton Utz)

T A Alexis SC with P M Sibtain for the respondents (instructed by Wise Legal)

Supreme Court Act 1970 (NSW), s 101(6).

Supreme Court Rules 1970 (NSW), Pt 55 r 7.

Hearne v Street

Courts — Appeal — Jurisdiction — Supreme Court of New South Wales (Court of Appeal) — Civil and criminal contempt of court — Character of contempt charged — Whether civil or criminal — Whether appeal to Court of Appeal precluded by findings and orders of primary judge acquitting alleged contemnors.

Contempt of court — Where implied undertaking by corporate litigant not to use documents prepared by another party otherwise than for purpose of proceedings in which they were prepared — Whether appellants as servants and agents of corporate litigant bound by obligation — Meaning of ‘implied undertaking’ — Whether knowledge of implied undertaking required or whether knowledge of facts generating an obligation imposed by law sufficient.

Contempt of court — Supreme Court Act 1970 (NSW), s 101(6) — Whether breach of implied undertaking civil or criminal contempt — Whether statement of charge precluded appeal to New South Wales Court of Appeal.

Contempt of court — Disclosure of documents filed in but not yet received in evidence by court — Whether implied undertaking attached to documents that they would not be disclosed to third parties without leave of court — Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament — Whether such disclosure protected by public interest defence based upon right of communication with Parliament — Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors.

Contempt of court — Implied undertaking not to disclose documents filed in court until received in evidence — Whether implied undertaking now a substantive rule of common law — Whether applicable law should be re-expressed — Whether such questions should or could be decided.

Parliament — State Parliament (NSW) — Privileges of — Contempt of — Whether provision of documents to Minister, a member of Parliament, within privileges of Parliament or public interest defence based thereon — Whether such questions could or should be decided in light of record and arguments of parties.

Words and phrases — ‘implied undertaking’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ. The parties to this appeal agreed that it raised two issues for decision. The issues were said to arise ‘where documents prepared for legal proceedings have been served upon another party to those proceedings, and the party so served is treated as having undertaken to the court not to use the documents otherwise than for the purpose of the proceedings.’ The documents in question in the appeal were treated as being in the same position, legally, as documents produced pursuant to an order for discovery. It was accepted that they were the subject of what is often described as an ‘implied undertaking’ not to use them for a purpose other than the conduct of the legal proceedings in question 1. Upon that basis, the issues were formulated as follows:

• ‘(a) [W]hether a servant or agent of such a party into whose hands the documents come, and who is aware that the documents were prepared for legal proceedings, is to be liable as if he or she had personally given such an undertaking; and

• (b) [I]f so, is a wilful but not contumacious breach of that undertaking by that servant or agent a “criminal contempt” for the purposes of s 101(6) of the Supreme Court Act 1970 (NSW).’

2 The second issue goes to jurisdiction. It turns upon the meaning and effect of s 101(5) and (6) of the Supreme Court Act. Those provisions came into effect in 1997. The evident purpose of sub-s (6) was to reflect, in the area of contempt, the general reluctance of the law to permit prosecution appeals against acquittals in criminal proceedings 2. The distinction between civil and criminal contempt is in some respects unsatisfactory, but the Supreme Court Act adopts the distinction for jurisdictional purposes, and therefore it must be applied. The question is whether, on the true construction of s 101 of the Act, the present case falls on the civil or the criminal side of the line. I agree with Hayne, Heydon and Crennan JJ, for the reasons they give, that this is a case of civil contempt, and that the second issue should be decided in favour of the respondents 3.

3 As to the first issue, I agree with Hayne, Heydon and Crennan JJ that the ‘implied undertaking’ is now better understood as a substantive legal obligation. I also agree that a servant or agent of a party, in the position described in the formulation of the first issue, is directly bound by such an obligation, and is not merely potentially liable as an accessory to a breach by the party. In view of the role of the appellants in the conduct of the matter of which the legal proceedings

formed an essential part, there is no difficulty in categorising them as agents of Luna Park Sydney Pty Ltd, as the statement of the first issue assumes.

4 Because of the terms in which the first issue is expressed, it is unnecessary to decide how far beyond the class of persons consisting of servants or agents of a party the legal obligation extends; or the scope of the concept of use of a document for purposes other than the conduct of the legal proceedings in which the party is involved. Both questions could cause difficulties in other cases, but they do not arise in this case.

5 Compulsory pre-trial exchange or disclosure of materials, such as witness statements and experts' reports, is now extensive. The rationale sometimes given for the obligation concerning discovered documents (it is the condition upon which a court compels disclosure of private documents) may not always be applicable to witness statements or experts' reports. There may be little or nothing about them that is private. This, in turn, is connected with the scope of the potential liability of strangers to the litigation into whose hands such materials may come. In this case, however, the appellants were no strangers to the litigation. The issue, as framed, assumes that they were agents of a party, that they were aware that the documents were prepared for legal proceedings, and that the documents were subject to the rule against use other than for purposes of the proceedings. This case does not raise a question whether, in the events that occurred, the documents were used for a collateral purpose, or whether the particular use to which they were put (political lobbying) involved any special considerations.

6 I agree that the first issue also should be decided in favour of the respondents, and that the appeal should be dismissed with costs.

7 Kirby J. This appeal arises from a judgment of the Court of Appeal of the Supreme Court of New South Wales 4. That Court, by majority 5, allowed an appeal from orders of Gzell J in the Supreme Court 6. It set aside his Honour's orders and substituted orders adjudging Mr Peter Hearne and Mr David Tierney (‘the appellants’) guilty of contempt of court. That finding was based on the first charge brought against each of the appellants in statements of charge filed by the respondents, Ms Joan Street and others (‘the residents’).

8 The Court of Appeal made consequential orders remitting the residents' notices of motion to Gzell J for hearing as to penalty. By special leave, the appellants have appealed to this Court.

The facts and legislation

9 The facts: The factual background to the dispute between the companies with which the appellants are associated and the residents is explained in the reasons of Hayne, Heydon and Crennan JJ (‘the joint reasons’). The explanation is expressed in terms that I accept 7. Those reasons describe the residents' original initiation of proceedings in the Supreme Court of New South Wales claiming relief for the tort of nuisance against Luna Park Sydney Pty Ltd and Metro Edgley Pty Ltd, companies concerned in the operation of Luna Park (‘the Park’). This is an amusement park situated on the north shore of Sydney Harbour not far from, and almost opposite to, the central business district of the city.

10 The record reveals that, whilst the nuisance proceedings were on foot, each of the appellants took steps to furnish certain documents to the Minister for Tourism, Sport and Recreation (‘the Minister’) or her staff. These documents included part of an affidavit sworn by one of the residents and filed, but not yet tendered or read, in the proceedings in the Supreme Court; as well as part of an acoustic report that had been filed on the residents' behalf. A further document detailed what one of the appellants suggested were ‘ridiculous complaints’ that had been submitted to the Park. These documents were said to illustrate the need for new legislation to shield the Park and its operators from proceedings for noise nuisance lest such proceedings drive the Park to closure 8. Self-evidently, any such closure would diminish the revenues to the government derived from the

Park and put in serious question the future of the Park as a popular amusement facility for tourists and other patrons.

11 By inference, neither of the appellants, at least initially, regarded their conduct in providing the documents to the Minister and others as wrongful or unlawful.

12 The provision of this material seemingly had its desired effect. As explained in the joint reasons 9, the Minister promptly introduced into Parliament the Luna Park Site...