Street & Ors v Hearne & Anor [2007] NSWCA 113

Reported Decision: 70 NSWLR 231 Appeal Outcome: Special leave application granted by the High Court - 7 March 2008; Appeal dismissed - 6 August 2008 - Hearne v Street [2008] HCA 36

New South Wales Court of Appeal

CITATION: Street & Ors v Hearne & Anor [2007] NSWCA 113 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 03/05/2007

JUDGMENT DATE: 17 August 2007

JUDGMENT OF: Ipp JA at 1; Basten JA at 123; Handley AJA at 143

DECISION: (1) Appeal upheld; (2) Orders of Gzell J set aside, and, in lieu thereof, orders adjudging Mr Hearne and Mr Tierney guilty of the contempt in the first charge in the Statements of Charge; (3) Notices of Motion remitted to Gzell J for hearing as to penalty, and to determine the appropriate orders for the costs of the first hearing; (4) Mr Hearne and Mr Tierney to pay the costs of the appeal; (5) Mr Hearne and Mr Tierney to have certificates under the Suitors Fund Act 1951 (NSW) for the cost of the appeal

CATCHWORDS: CONTEMPT OF COURT – implied undertaking by litigant not to use documents served by opposite party except for proper purposes of the litigation – whether binding on servants and agents of litigant. - CONTEMPT OF COURT – breach of undertaking to Court – civil or criminal – distinction. - CONTEMPT OF COURT – appeal from acquittal – whether competent. - CONTEMPT OF COURT – third parties who aid and abet breach of injunction or undertaking – civil or criminal. - APPEAL – Acquittal on charge of contempt – whether appeal competent.

Courts Legislation Amendment Act 1996 (NSW) Federal Court of Australia Act 1976 (Cth) Luna Park Site Act 1990 (NSW) Luna Park Site Amendment (Noise Control) Act (2005) Parliamentary Privileges Act 1987 (Cth) LEGISLATION CITED: RSC 1883 RSC 1962 Suitors Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth) Crown Lands Act 1989 (NSW)