KELLY -v- HILTON [No 5] [2024] WASC 343 (19 September 2024)

1. In the Committal motion, Mr Hilton alleges that Mr Kelly has committed 21 counts of criminal contempt of court and seeks orders that Mr Kelly be committed to prison or otherwise dealt with in such manner as the court may direct.
2. The allegations of contempt in the Committal motion fall into three categories:

(a) 15 charges of a contumacious breach of the Harman undertaking;

(b) one charge of a breach of the statutory obligation of confidence in s 71(1) of the Supreme Court Act 1935 (WA) concerning a mediation conference amounting to an interference in the administration of justice; and

(c) five other charges of conduct amounting to interference in the administration of justice.

1. In the Purge application, Mr Kelly seeks an order that he be discharged from punishment for 29 breaches of the Harman undertaking, or alternatively that he be punished for his breaches of the Harman undertaking by way of an order that Mr Kelly pay Mr Hilton's costs of and incidental to the Purge application on an indemnity basis.
2. There is a partial overlap of the charges identified in the Committal motion and the instances specified in the Purge application. Of the 21 charges in the Committal motion, 16 are also included in the Purge application, all being breaches of the Harman undertaking.[4] The Purge application has an additional 15 instances of possible breaches of the Harman undertaking identified.
3. Mr Kelly admits nine of the Committal motion charges concerning a breach of the Harman undertaking and a further four of the items in the Purge application as being civil contempts of court, but not criminal contempts of court. Mr Kelly does not admit the remaining charges in the Committal motion.
4. Schedule 1 to these reasons lists each of the committal charges, the particulars of each, and identifies the corresponding item number in the Purge application. Schedule 2 to these reasons lists the additional items in the Purge application that are not in the Committal motion. Those items marked with an asterisk in each schedule are admitted by Mr Kelly as being a civil contempt of court.
5. These two applications raise the following issues:

(1) Has Mr Kelly committed the charges of contempt alleged in the Committal motion concerning breaches of the Harman undertaking?

(2) If so, has Mr Kelly committed a civil or criminal contempt? This issue involves considering whether each contempt was contumacious.

(3) Has Mr Kelly committed the remaining charges of contempt alleged in the Committal motion?

(4) Has Mr Kelly committed any of the remaining instances of contempt concerning breaches of the Harman undertaking referred to in the Purge application?

(5) Has Mr Kelly purged each contempt or, alternatively, what is the appropriate penalty for each contempt?

1. These reasons address issues 1 - 4. The question of whether each contempt has been purged or, alternatively, the appropriate penalty, will be the subject of a further hearing and submissions from the parties in light of the findings I have made in relation to issues 1 - 4.
2. For the reasons set out below, I am of the view that Mr Kelly:

(a) has committed criminal contempt in the form of contumacious breaches of the Harman undertaking as alleged in charges 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 15 of the Committal motion;

(b) has committed a civil contempt by sending an email which revealed information disclosed in a court ordered mediation conference as alleged in charge 16 of the Committal motion;

(c) has not committed contempt by communicating with regulatory authorities for the purpose of seeking to have the authorities take adverse action against Mr Hilton as retribution for his defence of the substantive proceedings as alleged in charges 17 to 19 of the Committal motion;

(d) has not committed contempt by sending messages which were intended or calculated to discourage or dissuade potential witnesses from giving evidence in the substantive proceedings as alleged in charges 20 to 21 of the Committal motion; and

(e) has committed civil contempt in the form of breaches of the Harman undertaking as identified in items 6A, 6C, 6D and 6F of the Purge application.

1. The background facts are not in dispute and I find that the following occurred.
2. On 15 December 2020, Mr Kelly commenced the substantive proceedings by writ of summons indorsed with a statement of claim. In the substantive proceedings, Mr Kelly alleges that:

(a) Mr Kelly first met Mr Hilton in November 2016, at which time Mr Kelly was employed as the Managing Director of Doray Minerals Ltd.

(b) At their first meeting certain representations were made by Mr Hilton to Mr Kelly about what Mr Hilton described as gold tenements in Cambodia[5] which had been applied for by a company called Brighton Mining Group Limited (Brighton), which Mr Hilton said he controlled. These representations were repeated, and further representations were made by Mr Hilton to Mr Kelly about the Cambodian gold tenements between November 2016 to June 2017. Relevantly, those representations were to the effect that:

(i) the Cambodian gold tenements had been applied for by Brighton;

(ii) the Cambodian gold tenements were 'about to be granted' by the Cambodian government;

(iii) Mr Hilton had negotiated a joint venture term sheet with an Australian mining company active in Cambodia, Emerald Resources Limited (Emerald Resources), with respect to the Cambodian gold tenements pursuant to which Emerald Resources would manage and fund exploration on those gold tenements;

(iv) it was appropriate to ascribe to the Cambodian gold tenements a value in the order of AUD $4.5million;

(v) Brighton had obtained environmental approval from the Cambodian government, via the Cambodian Ministry of Environment for a project on part of the Cambodian gold tenements;

(vi) Cambodia Gold had made an application to the Cambodian Ministry of Mines and Energy for an exploration licence in respect of the Cambodian gold tenements via its local subsidiary company. Further, Cambodia Gold, via its local subsidiary, would be the holder of the exploration licences and ultimately the Cambodian gold tenements, once the applications were granted; and

(vii) representatives of Emerald Resources had attended a meeting with the Cambodian Ministry of Mines and Energy during which Emerald Resources had pledged its support for Cambodia Gold in respect of its application for the Cambodian gold tenements.

(c) As a consequence of the representations made by Mr Hilton to him, Mr Kelly resigned as the Managing Director of Doray Minerals Ltd and agreed, in effect, to partner with Mr Hilton in the formation of a new company, which would hold the merged assets of a company controlled by Mr Kelly with the gold tenements in Cambodia which Mr Hilton said he controlled.

(d) In the period to June 2016, Mr Kelly became the Managing Director of this new company, which came to be known as Riversgold. Mr Kelly also agreed to subscribe for shares in Riversgold.

(e) In September 2017, Riversgold acquired Cambodia Gold from Mr Hilton, and by so doing purported to acquire the Cambodian gold tenements. Riversgold was then listed on the ASX in October 2017.

(f) In March 2019, Mr Kelly resigned from Riversgold and a dispute subsequently arose between Mr Kelly and Riversgold in relation to Mr Kelly's entitlements following his resignation.

(g) In late March 2020, Mr Kelly became aware of information that he felt confirmed the suspicions he held that the Cambodian gold tenements would not ultimately be granted to Cambodia Gold, and thus be held by Riversgold.

(h) Around late March 2020, Riversgold was continuing to make statements to the ASX about the status of the Cambodian gold tenements which Mr Kelly considered were misleading as they did not disclose material price sensitive information available to it.

(i) In July and August 2020, Mr Kelly wrote to the ASX, ASIC and WAPOL regarding his concerns with the market announcements made by Riversgold and Mr Hilton's involvement in the subject matter of those announcements.

1. Mr Kelly pleads that the representations were made by Mr Hilton to Mr Kelly in the course of trade or commerce and were misleading or deceptive. In short, Mr Kelly's case is that Cambodia Gold had never applied for the Cambodian gold tenements; Cambodia Gold never held the Cambodian gold tenements; that Mr Hilton and Cambodia Gold never had a joint venture agreement with Emerald Resources and accordingly, Riversgold (and Mr Kelly) were misled into purchasing Cambodia Gold. Mr Kelly seeks damages or a compensation order under s 236 and s 237 of the Australian Consumer Law and the Australian Consumer Law (WA).
2. Mr Hilton filed his defence on 15 February 2021 and a reply was filed in March 2021. In September 2021, the matter was entered into the CMC list to be case managed by Strk J.
3. Mr Kelly then requested further and better particulars of the defence, which were provided on 19 August 2021. These further and better particulars referred to a letter from the Ministry of Mines and Energy to Cambodia Gold dated 4 April 2017 (MME Letter).[6] By letter dated 24 August 2021, Mr Kelly requested that Mr Hilton produce copies of the documents referred to in the further and better particulars for inspection. The documents, including the MME Letter, were produced on 31 August 2021 in accordance with the requirements of O 26 r 8(2) of the Rules of the Supreme Court 1971 (WA) (RSC).[7]
4. On Mr Kelly's case, the MME Letter is significant as it shows that Cambodia Gold had not applied for the Cambodian gold tenements as Mr Hilton represented, because the MME Letter states that the area was not yet open for application.
5. On 6 April 2022, Strk J made an order requiring the parties to provide discovery on affidavit of various categories of documents. Mr Hilton filed an affidavit of discovery sworn 26 July 2022 and discovered and produced for inspection 2143 documents. Mr Hilton provided the documents the subject of that affidavit to Mr Kelly in tranches in June and July 2022.[8] These discovered documents included a draft terms sheet sent by email on 15 May 2020 by Michael Davey of Riversgold to Mr Hilton (Draft Terms Sheet).
6. On Mr Kelly's case, the Draft Terms Sheet is significant as it proposes that Riversgold become the owner of Granite Gold Pty Ltd (Granite Gold), another company controlled by Mr Hilton, on the basis that Granite Gold had applied for licences covering the same area as the Cambodian gold tenements purportedly applied for and to be held by Cambodia Gold.
7. By order 4 made on 25 November 2021, Strk J referred the parties to mediation pursuant to Part VI of the Supreme Court Act 1935 (WA) (Supreme Court Act).[9] The mediation conference occurred on 9 February 2022.[10]
8. On 19 October 2022, Emerald Resources released an ASX announcement that it had entered into an agreement with a different company (unrelated to Riversgold, Cambodia Gold and Granite Gold) to develop the land the subject of the Cambodian gold tenements.[11]

1. In the Committal motion, Mr Hilton seeks orders that Mr Kelly has committed 21 charges of criminal contempt of court. Contempt of court is a common law offence preserved by s 7 of the Criminal Code (WA). Mr Kelly admits some, but not all, of these charges, but only as instances of a civil contempt of court.
2. There remains a distinction between civil and criminal contempt of court. Whilst the differences upon which the distinction is based have been described as illusory in significant respects,[12] the distinction was summarised in Witham v Holloway as follows:[13]

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.

1. Whether the contempt is criminal or civil in nature, the underlying rationale of the court's power to find a person in contempt and to deal with the person for that contempt, is to uphold and protect the effective administration of justice.[14]
2. A contempt proceeding takes place as a civil hearing and in accordance with the civil procedure rules of the court.[15] However, for any allegation of contempt, whether it be a civil or a criminal contempt, the onus of establishing the conduct which amounts to a contempt lies on the person alleging the contempt, and the facts demonstrating that the contempt has been committed must be established on admissible evidence beyond reasonable doubt.[16]
3. A breach of a court order or undertaking will constitute a civil contempt unless the breach was contumacious.[17] A breach will be contumacious where the disobedience or contravention involves deliberate defiance.[18] Contumacy is to be distinguished from what is sometimes described as a wilful breach. A wilful breach is one which goes beyond a casual, accidental or unintentional breach, but does not have the additional element of defiance.[19] Prior to considering whether a breach is contumacious, it is first necessary to determine whether a civil contempt has occurred.

Has Mr Kelly committed the charges of contempt alleged in the Committal motion concerning breaches of the Harman undertaking? Legal principles - Harman undertaking

1. The legal principles regarding what is commonly known as the Harman undertaking or obligation[20] are not in dispute. In Hearne v Street the High Court described the undertaking as follows:[21]

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

1. The undertaking applies to a range of material, including discovered documents, answers to interrogatories and documents produced on subpoena.[22] It also extends to the information contained in such documents.
2. Although traditionally described as an implied undertaking, properly understood it is a substantive legal obligation arising from the circumstances in which material is generated and received.[23] The obligation is owed to the court and for that reason a breach of the obligation can constitute a contempt of court.[24]
3. The rationale of the Harman undertaking is grounded in, and exists to serve, the interests of justice by promoting the efficacy of the compulsory processes of the court so as to achieve justice according to law in the proceedings.[25]
4. In order for a person to be held liable for contempt arising from a breach of the Harman undertaking it is not necessary that the alleged contemnor had knowledge of the implied undertaking or understood the legal consequences of their conduct.[26] Rather, it is necessary to demonstrate that:

(a) the documents or information were provided to the alleged contemnor pursuant to the compulsive processes of the court; and

(b) the alleged contemnor provided the documents or information to third parties for a purpose other than the litigation in the substantive proceedings.

1. If the above are demonstrated, the onus then falls on the alleged contemnor to demonstrate that the disclosure was casual, accidental or unintentional.[27]
2. The use that may be made of the documents has been variously described and explained in the authorities. Chesterman JA in Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4)[28] helpfully summarised the language used in the key authorities in this regard.
3. The High Court was not called upon in Hearne v Street to consider the precise scope of this aspect of the undertaking. However, the undertaking was described by the plurality as being not to use a document for, 'any purpose other than that for which it was given'.[29] Gleeson CJ described the undertaking as being not to use the documents 'other than for purposes of the proceedings' in question.[30]
4. The language of 'collateral' or 'ulterior' purpose was used in other authorities, for example in Harman, where Lord Diplock described the question in the appeal as being:[31]

... whether it is the duty of the solicitor of one party to civil litigation, who in the course of discovery in that litigation has obtained possession of copies of documents belonging to the other party to the litigation, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose of his own not reasonably necessary for the proper conduct of the action on his client's behalf ...

1. See also Mason CJ (with whom Dawson and McHugh JJ agreed) in Esso Australia Resources Limited v Plowman.[32]
2. After reviewing the relevant authorities, Chesterman JA concluded: [33]

[38] One gleans from this review of some of the authorities that what a party to litigation may not do with documents produced pursuant to compulsive processes is to utilise them for purposes "unconnected" with the litigation; or "unrelated" to it; or for a purpose "not reasonably necessary for the conduct of the litigation."

[39] The scope of the undertaking is, I think, not entirely accurately expressed in the narrower phrase; "for the purposes of that action" or "use in the action in which they are disclosed".

[40] The wider designation has the support of Mason CJ in Esso and Kirby P in Ainsworth as well as Lord Diplock in Harman. The undertaking will not be broken unless the disclosure which is impugned can be seen to be for a "collateral purpose", or an "ulterior purpose". Both terms indicate some disconnection between the proper conduct of the proceedings or litigation, and the use to which the documents are put.

...

[50] The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.

1. Whilst the above conclusions were obiter, they were adopted by Ward CJ in Equity (as her Honour then was) in Findex Group Limited v iiNet Ltd.[34]
2. However, it is not necessary for the purposes of the Committal motion or the Purge application to finally resolve the width of the undertaking or the various uses to which documents subject to the undertaking may be put. Mr Kelly's case is that each communication where a breach is not admitted was made for a purpose related to the substantive litigation.[35] There is no claim of a broader purpose that falls within the scope of the undertaking. The question which arises is whether, as a matter of fact, each communication was made for a purpose related to the substantive litigation. The answer to that question involves a consideration of each individual disclosure and Mr Kelly's evidence as to the purpose of that disclosure.

1. Each of these charges relate to communications between Mr Kelly and various regulatory authorities (being ASIC, the ASX and the Western Australian Police). It is alleged that in each communication Mr Kelly provided the regulatory authorities with the MME Letter, the Draft Terms Sheet or documents provided by Mr Hilton by way of discovery (or information obtained from these documents).
2. Each of these charges correspond to the following items in the Purge application: 6B, 1, 4, 2, 6, 5, 3, and 6G.
3. Charge 2 concerns a one-page email sent by Mr Kelly to officers of the Western Australian Police on 17 October 2021.[36] The subject line of the email is 'John Hilton Fraud' and the email provides an update on Mr Kelly's case against Mr Hilton. The email makes reference to Mr Hilton filing his defence, and Mr Kelly asking Mr Hilton to provide further information in relation to this defence, and being provided in late August with a copy of the MME Letter (which is then attached). The email goes on to explain why Mr Kelly considers the MME Letter to be significant, and concludes as follows:

I am therefore again asking for your assistance in pursuing this matter, in light of the recent information.

1. Charge 3 concerns an email sent by Mr Kelly to officers of the ASX on 9 July 2022.[37] The subject line is 'Riversgold Limited'. The email attaches a six-page letter to the ASX which refers to the MME Letter as well as other discovered documents. The second paragraph of the letter to the ASX provides as follows:

As a result of the discovery process relating to the above legal proceedings, I have become aware of further material information previously withheld by Mr Hilton.

1. The letter to the ASX goes on to detail Mr Kelly's complaints regarding the conduct of Mr Hilton and Riversgold and to refer in detail to correspondence and other events. The letter concludes as follows:

I have multiple documents to support each of the statements made above and look forward to your response and action finally being taken in relation to this multi-million dollar fraud.

1. Charge 4 concerns an email sent by Mr Kelly and addressed to an ASIC 'Misconduct & Breach Reporting' analyst on 18 July 2022.[38] The subject line of the email is 'Your Report of Misconduct with ASIC'. The email attaches a six-page letter to ASIC, which is essentially the same letter sent to the ASX on 9 July 2022, with the same reference to the discovery process.
2. Charge 6 concerns a further email sent by Mr Kelly to officers of the ASX on 26 September 2022.[39] The subject line of the email is 'Riversgold Limited'. The email attaches a five-page letter to the ASX which again makes reference to the MME Letter and other discovered documents. The opening paragraphs of the letter provide as follows:

Further to my previous correspondence to ASX (and ASIC), I advise that, as a result of the discovery process relating to current legal proceedings between myself and John Hilton of Greenwich Equities, I have become aware of further material information previously withheld by Mr Hilton relevant to the 2017 purchase of Cambodia Gold Pty Ltd ("CGPL") by Riversgold Limited ("Riversgold").

I have also become aware of further information relating to the March 2020 release of new licence areas by the Cambodian Ministry of Mines and Energy (MME).

I also note that I have not received any acknowledgment of my previous email and letter to you and Shannon Nicholson on 9 July 2022.

I have multiple documents to support my allegations but I will not send them to you unless I get a response to this letter.

I look forward to your prompt (or any) response.

1. Charge 11 concerns an email sent by Mr Kelly to officers of the Western Australian Police on 16 October 2022.[40] The subject line of the email is 'John Hilton Fraud'. The email is one and a half pages in length and provides an update on the proceedings with Mr Hilton. The email refers to the discovery process and having received Mr Hilton's discovered documents. The email then goes on to identify various items that 'came out of the discovery process' and makes reference to the MME Letter and the Draft Terms Sheet.
2. Charge 12 concerns an email sent by Mr Kelly to officers of ASIC on 21 October 2022.[41] The subject line of the email is 'Riversgold Limited' and the email refers to and attaches the Emerald Resources ASX announcement. The email goes on to outline Mr Kelly's claims in relation to Mr Hilton's conduct and makes reference to the Draft Terms Sheet. The email concludes as follows:

Hilton, current Riversgold CEO Julian Ford and Jay Klopper (sole Director and shareholder of Granite Gold Pty Ltd), amongst others, conspired to defraud Riversgold shareholders not once, but twice: firstly as part of the 2017 IPO; and later, in 2020, when they proposed purchasing Granite Gold Pty Ltd from Hilton and Klopper "just in case" it was granted the tenements that Riversgold paid Hilton for in 2017.

1. Charge 13 concerns an email sent by Mr Kelly to officers of the ASX also on 21 October 2022.[42] The email is largely identical to the email the subject of charge 12.
2. Charge 15 concerns an email by Mr Kelly to officers of the Western Australian Police also sent on 21 October 2022.[43] The email forwards the email the subject of charge 11, and attaches copies of the Emerald Resources ASX announcement and the Draft Terms Sheet accompanied by the following text:

Hot off the press ...

These are the "projects" Hilton sold to Riversgold for $6.4 million in 2017, but didn't exist.

Hilton tried the same thing again in March 2020, when they were finally released, but they were granted to someone else in July 2020.

1. Mr Kelly's evidence is that he sent this email after he became aware of the Emerald Resources ASX announcement.[44]
2. Mr Kelly admits that he breached the Harman undertaking by sending the communications to the regulatory authorities which are the subject of charges 2, 3, 4, 6, 11, 12, 13 and 15 of the Committal motion. Mr Kelly further accepts that each of these communications constitutes a civil contempt.[45]
3. Having had regard to the evidence and submissions before me, I am satisfied beyond reasonable doubt of the following:

(a) Mr Hilton provided the documents particularised in each charge to Mr Kelly in the course of the substantive proceedings. Mr Hilton was compelled to provide those documents pursuant to O 26 r 8(2) RSC and/or the order for discovery made by Strk J on 6 April 2022.

(b) Mr Kelly was aware that the particularised documents were obtained from Mr Hilton in the substantive legal proceedings;

(c) Mr Kelly made each of the communications to the regulatory authorities referred to in the Committal charges;

(d) In making those communications, Mr Kelly provided the regulatory authorities with the particularised documents, or information derived from the particularised documents, for a purpose other than the litigation in the substantive proceedings; and

(e) Mr Kelly did not have the leave of the court to provide the particularised documents to the regulatory authorities and/or had not obtained a discharge from his obligations under the Harman undertaking from the court.

1. I am therefore satisfied beyond reasonable doubt that Mr Kelly committed a civil contempt as alleged in charges 2, 3, 4, 6, 11, 12, 13 and 15.

1. Each of these charges relate to communications between Mr Kelly and individual third parties. It is alleged that in each communication Mr Kelly provided third parties with the MME Letter and/or documents provided by Mr Hilton by way of discovery, and/or information obtained from these documents. Mr Kelly does not admit these charges.
2. There is no dispute, and I am satisfied beyond reasonable doubt, that:

(a) Mr Hilton provided the documents particularised in each charge to Mr Kelly in the course of the substantive proceedings. Mr Hilton was compelled to provide these documents pursuant to O 26 r 8(2) RSC and/or the order for discovery made by Strk J on 6 April 2022.

(b) Mr Kelly was aware that these documents were obtained in the substantive legal proceedings;

(c) Mr Kelly made each of the communications to the third parties referred to in the Committal charges;

(d) In making those communications, Mr Kelly provided the third parties with the particularised documents, or information derived from the particularised documents; and

(e) Mr Kelly did not have the leave of the court to provide the particularised documents or information to the third parties and/or had not obtained a discharge from his obligations under the Harman undertaking from the court.

1. The issue raised by these charges is the purpose for which the communication the subject of each charge was made. Mr Hilton says that each communication was not made for a purpose related to the proceedings and therefore a breach of the Harman undertaking has occurred. Mr Kelly says that each communication was made for a purpose related to the substantive proceedings. It is therefore necessary to consider each communication and determine the purpose of each.

The content of the message and Mr Kelly's explanation

1. Charge 1[46] concerns a LinkedIn message sent by Mr Kelly to Richard Stanger on 31 August 2021.[47] Attached to that message was a screenshot of the MME Letter. The text of the message read as follows:

Just received this from Hilton's lawyers!

He knew he had nothing April 17!

Interesting

I remember the ministry asked me who in that company

Looks as though you won?

1. Mr Stanger is a contact of Mr Kelly in Cambodia who provides services to mining exploration companies with interests in Cambodia. Mr Kelly first came to know of Mr Stanger around August 2017 and first met Mr Stanger in April 2018.[48]
2. Mr Kelly's evidence is that he knew Mr Stanger as a person with a longstanding relationship with the Ministry of Mines and Energy and that he was involved in assisting Mr Hilton with Brighton's interests in the exploration licences previously held by Summer Gold and Sun Hill.[49]
3. Mr Kelly's evidence is that he sent the screenshot of the MME Letter to Mr Stanger because Mr Stanger had a good understanding of how the Cambodian mining system worked, and a strong relationship with the Ministry of Mines and Energy. Mr Kelly's evidence is that he hoped Mr Stanger would give his view on what the MME Letter meant.[50]
4. In cross-examination, Mr Kelly accepted that there was no request for information in the LinkedIn message and he did not ask Mr Stanger in the LinkedIn message for his view on what the MME Letter meant.[51] In cross-examination Mr Kelly also accepted that there was no basis for his hope that Mr Stanger would give his view.[52]

What was the purpose of the message and has there been a breach of the Harman undertaking?

1. I must be satisfied, beyond reasonable doubt, that Mr Kelly did not send the LinkedIn message to Mr Stanger for the purposes of the substantive proceedings. I am not satisfied of this beyond reasonable doubt for the following reasons.
2. Mr Hilton submits that Mr Kelly's explanation for sending the message is baseless and ought not be accepted. Mr Hilton submits that given Mr Kelly does not ask Mr Stanger any questions in the message or request any information from Mr Stanger, he could have no hope that Mr Stanger would give his view on what the MME Letter meant.
3. I accept that when the message is read in isolation the lack of any express question or request for information may tend to suggest that the message was not sent for any purpose connected with the proceedings, but rather to boast that Mr Kelly has obtained a document that he considers supports his case.
4. However, I accept Mr Kelly's submission that the document must be read in its context, which includes the nature of the relationship between Mr Kelly and Mr Stanger, and the history of communications between them. Those communications, as revealed in Exhibit 2, demonstrate that Mr Kelly and Mr Stanger had been communicating since 2018 regarding the underlying issues and facts the subject of the litigation, and then later the litigation itself. In some of those communications, Mr Kelly would ask Mr Stanger questions about underlying factual matters, or how Mr Kelly might go about obtaining information or documents.[53] The most recent set of exchanges prior to the 31 August 2021 message occurred on 25 August 2021 where Mr Kelly had asked Mr Stanger some questions.[54] The messages continued after 31 August 2021.
5. One of the underlying factual issues the subject of some of the messages was Mr Kelly needing to show proof that there was no chance of the Cambodian licences being granted and Mr Hilton knew this,[55] and needing something official from the Ministry of Mines and Energy for the Supreme Court and ASX.[56]
6. The uncontested evidence before the court was Mr Kelly knew Mr Stanger as a person with a longstanding relationship with the Ministry of Mines and Energy and that he was involved in assisting Mr Hilton in the past. This appears to be consistent with the content of the LinkedIn messages in Exhibit 2.
7. Some of the messages refer to plans for Mr Kelly and Mr Stanger to meet in person. It is not clear if those meetings eventuated.
8. In light of this context and information, another explanation for the message in charge 1 was that Mr Kelly and Mr Stanger had been engaging in electronic communications for some years about the factual matters underlying the substantive proceedings, and then later about the proceedings once commenced. In many of those communications Mr Kelly asked Mr Stanger questions or for information.
9. In the present case, Mr Stanger did not simply respond to the message by acknowledging receipt, but rather he also provided a substantive comment or further information relating to the MME Letter.
10. Against that backdrop, I cannot exclude as a possible purpose for the 31 August 2021 message that it was a continuation of past exchanges between Mr Kelly and Mr Stanger, and that whilst the wording may be unclear, that Mr Kelly was providing the communication for the purposes of obtaining Mr Stanger's views as to meaning of the MME Letter for use in the substantive proceedings.
11. In these circumstances, I am not satisfied beyond reasonable doubt that the LinkedIn message was sent for a purpose unrelated to the substantive proceedings, notwithstanding Mr Kelly's answer in cross‑examination that he had no basis for his hope that Mr Stanger would provide his view on the meaning of the MME Letter. I therefore do not find that Mr Kelly breached the Harman undertaking in relation to this message.

The content of the emails and Mr Kelly's explanation

1. Charges 5 and 14[57] each concern emails sent by Mr Kelly to Graham Moir on 25 September 2022.[58] Mr Moir provides logistical and other services to mining exploration companies with interests in Cambodia. Mr Kelly's evidence is that he was introduced to Mr Moir in August 2017, but they have never met in person.[59]
2. Charge 14 concerns an email sent by Mr Kelly at 4.51 pm on 25 September 2022 in which Mr Kelly referred to information obtained from the Draft Terms Sheet. The text of the email is as follows:[60]

Also just found out he tried to do another deal with Riversgold in May 2020, at the time Zhang was getting the new licences.

He convinced riversgold he might get them via Granite gold. So they were going to buy that company off him too!

1. Charge 5 concerns an email sent by Mr Kelly to Mr Moir later on 25 September 2022, this time at 6.17 pm. In this email Mr Kelly attached a copy of the Draft Terms Sheet and the associated covering email. The text of that email is as follows:[61]

Another dodgy deal for non-existent projects.

This was between the MME release and the grant to Zhang.

1. Mr Kelly's evidence was that he had sent emails to Mr Moir between October 2021 and November 2022. In some of those emails, Mr Kelly asked Mr Moir to translate documents in Cambodian for him that had been provided in the litigation, including the MME Letter.[62]
2. Mr Kelly's evidence is that he told Mr Moir about the Draft Terms Sheet, and provided him with a copy, in confidence because he considered it to be a significant document in the substantive proceedings and he wondered if Mr Moir could tell him anything about the document, given Mr Moir's knowledge of Cambodian mining practices.[63]
3. Mr Kelly also refers to the subject line of the email the subject of charge 5, which is 'Fwd: what do you make of these ???'.
4. In cross-examination, Mr Kelly accepted that he did not ask Mr Moir for any information about the Draft Terms Sheet in the emails.[64] Mr Kelly's evidence was then:

You just sent those to him so that he would know about that, didn't you?---No, it was in response to his email further down.

AJK47?---No. He said to me - I saw what he produced claiming to be applications.

And you gave the answer:

Just found out he tried to do another deal with Riversgold.

?---Yes.

Now, you didn't ask him any information for the use in these proceedings though, did you?---No.

That wasn't the point of telling him about these things, was it?---No, it wasn't.

It was just so Mr Moir would know about them, isn't it?---It was part of a discussion about the Cambodian tenements that we had been having over a while.

But not for use in these proceedings?---It was connected to these proceedings.

Well, did you ask him anything about them?---I was talking about the Cambodian tenements in general through 2020, 2021, 2022.

What was the purpose of the emails and has there been a breach of the Harman undertaking?

1. I must be satisfied, beyond reasonable doubt, that Mr Kelly did not send the emails to Mr Moir for the purposes of the substantive proceedings. I am not satisfied of this beyond reasonable doubt for the following reasons.
2. I accept Mr Kelly's submission that consider that the emails should be read together as they are part of the one broader conversation between Mr Kelly and Mr Moir on 25 September 2022 consisting of a total of seven email messages. The emails the subject of charges 5 and 14 are the last two emails sent on 25 September 2022. Some of the earlier emails are also dealt with as part of the Purge application.[65]
3. In the earlier emails, Mr Kelly sends Mr Moir a document described as a receipt. Mr Kelly asks Mr Moir if he has any idea what the document is, and Mr Moir provided his view and offers to get the document translated and attaches a rough translation.[66] The document the subject of the emails was a document discovered by Mr Hilton. In the emails Mr Kelly and Mr Moir discuss what the receipt is, and their view that it does not constitute a receipt for a licence application fee.
4. Whilst the email the subject of charge 14 then follows those discussions, and is included in the same email chain, it does not relate to the receipt document and Mr Kelly instead raises a new topic for discussion, being providing information about the Draft Terms Sheet.
5. Mr Hilton submits that Mr Kelly's explanation for sending the emails should be rejected as neither email contains a question or a request for a translation or information. Further, the email the subject of charge 14 only contains a comment as to what Mr Kelly considers the Draft Terms Sheet shows.
6. Read on its own, the email sent at 4.51 pm does not ask Mr Moir for assistance with understanding the Draft Terms Sheet or obtaining a translation. It also introduces a new topic from the earlier emails, and one interpretation is that Mr Kelly is simply telling Mr Moir about the Draft Terms Sheet, or perhaps bragging about it.
7. However, the email forms part of a broader exchange of communications between Mr Kelly and Mr Moir in 2021 and 2022 in which Mr Kelly seeks Mr Moir's assistance in translating discovered documents and understanding not only their text, but what each means in the context of Mr Kelly's case in the litigation.[67] Whilst these emails are not written in a formal style, this is consistent with the long‑standing nature of the relationship between Mr Kelly and Mr Moir. I also note that Mr Kelly is not a lawyer.
8. When the email sent at 4.51 pm is read against this background; in the context of the other emails sent on 25 September 2024 and with the email sent at 6.17 pm, which attaches the Draft Terms Sheet and includes the subject line 'Fwd: what do you make of these???', I cannot exclude the inference that a purpose of the emails was to seek Mr Moir's opinion as to what the Draft Terms Sheet meant for the purposes of the substantive proceedings.
9. In these circumstances, I am not satisfied beyond reasonable doubt that the emails the subject of charges 5 and 14 were sent for a purpose unrelated to the substantive proceedings, notwithstanding Mr Kelly's somewhat confusing answers in cross-examination about whether the email was asking for information for use in the proceedings. I therefore do not find that Mr Kelly breached the Harman undertaking in relation to these emails.

The content of the messages and Mr Kelly's explanation

1. Charges 7 and 8[68] concern two Skype messages sent by Mr Kelly to Heng Pheng on 16 October 2022.
2. Mr Pheng is a Cambodian lawyer who resided in Cambodia. Mr Pheng was engaged by Mr Hilton from around July 2016 to advise companies associated in some way with Mr Hilton in relation to the Cambodian gold mining prospects the subject of the substantive proceedings.[69]
3. Mr Kelly's evidence is that he was told by Mr Hilton in July or August 2017 that Mr Pheng was Mr Hilton's 'contact on the ground' in Cambodia. Mr Kelly then had regular and direct dealings with Mr Pheng whilst Mr Kelly was the managing director of Riversgold, as Mr Pheng acted for Cambodia Gold and then Riversgold. Mr Kelly's evidence is that in 2018 Mr Pheng was paid a monthly retainer by Riversgold.[70]
4. Charge 7 concerns a Skype message sent by Mr Kelly to Mr Pheng at 5.01 pm on 16 October 2022. In that message Mr Kelly attaches a screen shot of the MME Letter accompanied by the following text:[71]

1. Charge 8 concerns a further Skype message sent by Mr Kelly to Mr Pheng at 5.15 pm on the same day. In that message Mr Kelly attaches a screen shot of the Draft Terms Sheet, without any accompanying text.[72]
2. Mr Pheng did not respond to either message. Mr Kelly deleted both messages 'pretty much straight away' after he sent them, although he cannot recall precisely when.[73] In his affidavit evidence, Mr Kelly deposed that he deleted the messages as he considered he had made a mistake in contacting Mr Pheng, given his association with Mr Hilton.[74] In cross-examination, Mr Kelly said that was only part of the reason, and he also deleted the messages because he realised it was wrong to send the discovered documents.[75]
3. Mr Pheng forwarded a copy of Mr Kelly's messages to Mr Hilton on 20 or 21 October 2022.[76]
4. Mr Kelly's evidence in his first affidavit was that he sent the first Skype message out of anger and frustration because Mr Pheng had not provided him with a copy of the MME Letter when Mr Pheng was acting for Riversgold. Mr Kelly's evidence was that he wanted Mr Pheng to know that he was aware of the MME Letter which had not been disclosed to Mr Kelly.[77]
5. Mr Kelly's evidence was that he also sent the second Skype message out of anger and frustration. Mr Kelly's evidence was that he wanted to see what Mr Pheng's response would be and whether Mr Pheng would tell Mr Kelly more information about any applications for mining exploration licenses that may have been submitted by Granite Gold. Mr Kelly considered that, given Mr Pheng's association with Mr Hilton, Mr Pheng might have been involved in preparing any applications for mining exploration licences that may have been submitted by Granite Gold's Cambodian subsidiary.[78]
6. In Mr Kelly's second affidavit, he deposes that following additional searches he located some additional Skype messages with Mr Pheng.[79] Those messages include one message from Mr Pheng on 13 April 2018 where Mr Pheng says, 'Hi how are you Allan?'. The next message is from Mr Kelly on 12 August 2021, where Mr Kelly attaches a screenshot of a document and says:[80]

When are you going to tell riversgold that the Antrong licences were awarded to Zhang in July last year ?? Before or after emerald announce their JV over them!?

1. The next message was sent by Mr Kelly on 29 October 2021, where Mr Kelly attaches a screenshot of a document with the text, 'Lol!' and finally on 21 October 2022, Mr Kelly sent a message attaching a screenshot of the Emerald Resources joint venture announcement. None of these messages were responded to.[81]
2. In Mr Hilton's affidavit there is a further Skype message from Mr Kelly to Mr Hilton on the following Friday 21 October 2022, where Mr Kelly sent a screen shot of the ASX announcement by Emerald Resources and accompanying disparaging text.[82]
3. In cross-examination Mr Kelly accepted that he sent the message at 5.01 pm because he wanted Mr Pheng to know that he was aware of the MME Letter. Mr Kelly's evidence as to why he sent the message was as follows:[83]

And you deny it was sent to intimidate Mr Pheng by saying that you knew what he had done?---No, I didn't - I didn't do it for that reason.

Just to let him know?---Yes.

What was the point of that?---I had sent him a message about a year earlier asking him when he was going to tell Riversgold that the license had been granted to someone else, and I was aware that Emerald were negotiating a JV. And then this was, I guess, my proof that what I had asked him 12 months ago was true.

1. Mr Kelly then accepted that he did not ask Mr Pheng about the MME Letter for the purposes of the substantive legal proceedings.[84]
2. In relation to the message containing the first page of the Draft Terms Sheet, Mr Kelly accepted in cross-examination that he did not ask Mr Pheng any questions about the document.[85]

What was the purpose of the messages and has there been a breach of the Harman undertaking?

1. I must be satisfied, beyond reasonable doubt, that Mr Kelly did not send the two Skype messages to Mr Pheng for the purposes of the substantive proceedings. I am satisfied of this beyond reasonable doubt for the following reasons.
2. I accept that the Skype messages the subject of charges 7 and 8 should be read together, as they were sent on the same day and are part of the one communication.
3. Mr Kelly submits that the first message was sent for the purpose of obtaining information from Mr Pheng as to why Mr Pheng had not told him about the MME Letter previously. Further, when the two messages are read together, Mr Kelly submits that the purpose of the second message is to seek information about the Draft Terms Sheet. Mr Kelly submits that he sent the message to elicit information from Mr Pheng as someone who was involved in, and had knowledge about, the matters in dispute in the substantive proceedings. Mr Kelly submits that it was reasonable for him to seek information about the Draft Terms Sheet from Mr Pheng, as given his previous association with Mr Hilton, Mr Pheng may have been involved in preparing the mining applications that were submitted by Granite Gold. I do not accept this submission.
4. On their face, neither message is sent for the purpose of obtaining information or assistance for use in the substantive proceedings. Each is simply letting Mr Pheng know that Mr Kelly is aware of both the MME Letter and the Draft Terms Sheet. Mr Kelly does not at any point ask Mr Pheng any questions about the MME Letter or the Draft Terms Sheet in the messages.
5. Mr Kelly submits that he was not cross-examined on his evidence that he sent the messages to elicit information from Mr Pheng as someone who was involved in, and had knowledge about, the matters in dispute in the substantive proceedings. I do not consider that any such cross-examination was required in this case.[86] Mr Kelly was on notice that his evidence as to the purpose of sending the messages was in dispute. That notice is evident from the inclusion of these charges in the Committal motion and the allegation that the messages were a breach of the Harman undertaking.
6. Mr Kelly's evidence is that he sent both messages out of anger and frustration, which I accept for the reasons set out at [193] - [205] of these reasons. Mr Kelly's evidence is that he sent the message with the MME Letter for the purpose of letting Mr Pheng know that Mr Kelly was now aware of the letter. Mr Kelly accepted that he did not send this message for the purposes of the substantive legal proceedings. In the second message attaching the Draft Terms Sheet, Mr Kelly does not ask Mr Pheng any questions or request any assistance or information.
7. The plain text and tone of the messages is consistent with Mr Kelly's evidence that he sent the messages out of anger and frustration.
8. The meaning derived from the plain text of the messages is also supported when the messages are considered in the context of the history of the relationship between Mr Pheng and Mr Kelly, and the other Skype messages sent between them.
9. Mr Pheng was engaged by Mr Hilton to provide him with legal advice, before later also being engaged by Riversgold. There is no evidence of any independent relationship between Mr Kelly and Mr Pheng. Further, Mr Kelly did not have a history of an exchange of correspondence with Mr Pheng where he asked him questions or sought information from him for the purposes of the substantive legal proceedings. The messages were unsolicited. In this respect, the relationship between Mr Pheng and Mr Kelly was materially different to the relationship between Mr Kelly and both Mr Stanger and Mr Moir. Whilst Mr Kelly did identify two past Skype messages, none of these suggest an ongoing line of communication and discussion of this type.
10. It is also relevant (although not determinative) that, unlike Mr Stanger and Mr Moir, Mr Pheng does not respond to any of these messages or provide any information or assistance or views as to the documents.
11. In addition, Mr Kelly admitted deleting both messages 'pretty much straight away' after he sent them, although he cannot recall precisely when. Mr Kelly's original explanation for deleting the messages was because he realised he had done the wrong thing in sending the messages given Mr Pheng's association with Mr Hilton as Mr Pheng would be likely to tell Mr Hilton about the messages. In cross-examination, Mr Kelly said that he also deleted the messages because he realised it was wrong to send the discovered documents. Whatever the precise reason, this behaviour is inconsistent with the purpose of the messages being to obtain information and assistance for use in the substantive litigation.
12. I do not accept Mr Kelly's evidence that the purpose of the messages was to attempt to obtain information for use in the substantive proceedings. That evidence is inconsistent with the plain text and tone of the messages; the nature of the relationship between Mr Kelly and Mr Pheng; the lack of any history of obtaining or requesting information from Mr Pheng for the purposes of the substantive proceedings; the other messages sent by Mr Kelly to Mr Pheng; Mr Kelly's admission that he sent the message out of anger and frustration; the conduct of Mr Kelly immediately after sending the messages, and the concessions made by Mr Kelly in cross-examination.
13. In these circumstances, I am satisfied beyond reasonable doubt that the messages the subject of charges 7 and 8 were not sent for a purpose related to the substantive proceedings. I therefore find that Mr Kelly breached the Harman undertaking in relation to these messages.

The content of the messages and Mr Kelly's explanation

1. Charges 9 and 10[87] concern two text messages sent by Mr Kelly to Jay Klopper. The Committal motion refers to these messages being sent in September 2022. In his second affidavit, Mr Kelly deposes that whilst he originally believed the messages were sent in September 2022, he now believes he sent them on 16 October 2022, on the same day the Skype messages were sent to Mr Pheng.[88]
2. Mr Klopper was a friend of Mr Kelly from university and first introduced Mr Kelly to Mr Hilton.[89] Mr Klopper was engaged by Mr Hilton as a geologist to assist two companies associated with Mr Hilton in relation to the Cambodian gold mining prospects.[90]
3. Charge 9 concerns a text message sent by Mr Kelly to a number he thought belonged to Mr Klopper. Mr Kelly attached a screenshot of the Draft Terms Sheet accompanied by the following text:[91]

WTF? Selling one worthless company is pretty good, but trying to sell a second one is extraordinary.

1. Charge 10 concerns a further text message sent by Mr Kelly to the same number. Mr Kelly attached a screenshot of the MME Letter accompanied by the following text:[92]

you didn't think to provide this as part of the IPO DD process??

1. Mr Klopper did not respond to either text message, and Mr Kelly was not aware of whether they were received by Mr Klopper.[93] Mr Kelly deleted both messages 'pretty much straight away' after he sent them, although he cannot recall precisely when.[94] In his affidavit evidence, Mr Kelly deposed that he deleted the messages as he considered he had made a mistake in contacting Mr Klopper, given his association with Mr Hilton.[95] In cross-examination, Mr Kelly said that he deleted the messages because he realised it was wrong to send the discovered documents.[96]
2. Mr Kelly's affidavit evidence is that he sent these text messages to Mr Klopper out of anger and frustration as he was angry with Mr Klopper given their long-standing relationship. Mr Kelly's evidence was that he hoped that Mr Klopper could explain to Mr Kelly why he was not mentioned in the Draft Terms Sheet given that, according to the ASIC register information, Mr Klopper was the sole Director and Shareholder of Granite Gold. Mr Kelly's evidence was that he wondered if Mr Klopper actually knew about the Draft Terms Sheet.[97] In cross-examination, Mr Kelly accepted that he did not ask Mr Klopper this question.[98]
3. Prior to these two messages, Mr Kelly had not spoken to Mr Klopper since 2019.[99] There were no other messages between the two of them.[100]

What was the purpose of the messages and has there been a breach of the Harman undertaking?

1. I am satisfied beyond reasonable doubt that both these messages were sent to Mr Klopper on 16 October 2021, on the same day as the messages sent to Mr Pheng. I consider it appropriate to read the two messages together, given they were sent on the same day.
2. Mr Hilton submits that the position in relation to the text messages sent to Mr Klopper is essentially the same as those sent to Mr Pheng. Mr Kelly agrees that a comparison may be drawn between the communications with Mr Pheng and Mr Klopper.
3. I must be satisfied, beyond reasonable doubt, that Mr Kelly did not send the two text messages to Mr Klopper for the purposes of the substantive proceedings. I am satisfied of this beyond reasonable doubt for the following reasons.
4. Mr Kelly submits that, as with the communications to Mr Pheng, both messages were sent for the purpose of eliciting information from a person involved in, and who had knowledge about, the very matters in issue in the substantive proceedings. I do not accept this submission.
5. Mr Kelly submits that the history of the friendship between Mr Kelly and Mr Klopper and his concern that Mr Klopper conspired with Mr Hilton to defraud Riversgold shareholders supports his submission as to the purpose of the messages.
6. On their face, neither message is sent for the purposes of obtaining information or assistance for use in the substantive litigation. Mr Kelly relies on the text of the first message, being 'WTF?', as demonstrating that the purpose of this message was to ask Mr Klopper to explain the document and the situation as a whole, and in particular how it was that Mr Hilton appeared to be trying to sell another company to Riversgold, namely Granite Gold. In relation to the second message, Mr Kelly relies on the text itself, in which he asked Mr Klopper why the MME Letter had not been provided at the time of the IPO process.
7. I do not accept Mr Kelly's submission. Whilst each text message does ask Mr Klopper a question, the text of each message is accusatory in tone and the questions are rhetorical in nature.
8. Mr Kelly submits that he was not cross-examined on his evidence that he sent the messages to elicit information from Mr Klopper as someone who was involved in, and had knowledge about, the matters in dispute in the substantive proceedings. I do not consider that any such cross-examination was required in this case.[101] Mr Kelly was on notice that his evidence as to the purpose of sending the messages was in dispute. That notice is evident from the inclusion of these charges in the Committal motion and the allegation that the messages were a breach of the Harman undertaking.
9. Mr Kelly has admitted that he sent both messages out of anger and frustration which I accept for the reasons set out at [193] - [205] of these reasons.
10. The tone and rhetorical nature of the text messages is consistent with Mr Kelly's evidence that he sent both messages out of anger and frustration.
11. The tone and rhetorical nature of the text messages is also consistent with the history of the relationship between Mr Klopper and Mr Kelly, and the lack of any other messages sent between them. Whilst Mr Kelly and Mr Klopper had known each other since university, it was Mr Klopper who introduced Mr Kelly to Mr Hilton, and Mr Klopper was a director of Granite Gold. Mr Kelly had not spoken to Mr Klopper since 2019, approximately three years before the text messages were sent.
12. As with Mr Pheng, Mr Kelly did not have a history of an exchange of correspondence with Mr Klopper where he asked him questions or sought information from him for the purposes of the substantive legal proceedings. In this respect, whilst Mr Kelly and Mr Klopper may have known each other since university, the relationship between the two was materially different to the relationship between Mr Kelly and both Mr Stanger and Mr Moir. Mr Kelly was not even aware if the number he used was Mr Klopper's number.
13. Mr Hilton also relies on the email sent by Mr Kelly to officers of the ASX one week later on 21 October 2022 (the subject of charge 13). In that email, Mr Kelly states as follows regarding Mr Klopper:[102]

Hilton, current Riversgold CEO Julian Ford and Jay Klopper (sole Director and shareholder of Granite Gold Pty Ltd), amongst others, conspired to defraud Riversgold shareholders not once, but twice: firstly as part of the 2017 IPO; and later, in 2020, when they proposed purchasing Granite Gold Pty Ltd from Hilton and Klopper "just in case" it was granted the tenements that Riversgold paid Hilton for in 2017.

1. This email is not consistent with Mr Kelly's explanation that he sent a text message to Mr Klopper to obtain information for use in the substantive proceedings. Rather, it is consistent with Mr Kelly sending a text message out of anger and frustration to Mr Klopper and is consistent with the text, tone and rhetorical nature of the messages.
2. It is also relevant (but not determinative) that Mr Klopper does not respond to any of these messages or provide any information or assistance or views as to the documents.
3. In addition, Mr Kelly admitted to deleting the messages 'pretty much straight away' after he sent them, although he cannot recall precisely when. Mr Kelly's original explanation for deleting the messages was because he realised he had done the wrong thing in sending the messages given Mr Klopper's association with Mr Hilton as Mr Klopper would be likely to tell Mr Hilton about the messages. In cross-examination, Mr Kelly said that he also deleted the messages because he realised it was wrong to send the discovered documents. Whatever the precise reason, this behaviour is inconsistent with the purpose of the messages being to obtain information and assistance for use in the substantive proceedings.
4. In these circumstances, I do not consider the text messages are genuinely seeking information for use in the substantive proceedings. Rather, they are text messages demonstrating that Mr Kelly is aware of the MME Letter and the Draft Terms Sheet and are rhetorically asking why Mr Klopper did not tell Mr Kelly about these at the time.
5. I do not accept Mr Kelly's evidence that the purpose of the messages was to seek to obtain information for use in the substantive proceedings. It is inconsistent with the plain text and tone of the messages; the nature of the relationship between Mr Kelly and Mr Klopper; the lack of any history of obtaining or requesting information from Mr Klopper for the purposes of the substantive proceedings; Mr Kelly's admission that he sent the message out of anger and frustration; the conduct of Mr Kelly immediately after sending the messages, and the concessions made by Mr Kelly in cross‑examination.
6. In these circumstances, I am satisfied beyond reasonable doubt that the messages the subject of charges 9 and 10 were not sent for a purpose related to the substantive proceedings. I therefore find that Mr Kelly breached the Harman undertaking in relation to these emails.

Were Mr Kelly's breaches of the Harman undertaking contumacious? Legal principles

1. I have found that Mr Kelly breached the Harman undertaking in relation to his communications with the regulatory authorities (charges 2, 3, 4, 6, 11, 12, 13 and 15), Mr Pheng (charges 7 and 8) and Mr Klopper (charges 9 and 10).
2. The next issue to consider is whether those breaches were contumacious. A breach will be contumacious where the disobedience or contravention involves deliberate defiance.[103] Contumacy is to be distinguished from what is sometimes described as a wilful breach. A wilful breach is one which goes beyond a casual, accidental or unintentional breach, but does not have the additional element of defiance.[104]
3. In the Full Federal Court, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd,[105] Smithers and Northrop JJ held:

It is appropriate for the contempt before the Chief Judge to be regarded as involving an element of contumacious conduct. Contumacy is perverse obstinate resistance to authority; see the Shorter Oxford Dictionary. Deliberate determination to defy the court for reasons founded upon Union policy in which it is sought to establish immunity from the law would seem to be within this concept of contumacy.

1. In the High Court, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd,[106] Gibbs CJ, Mason, Wilson and Deane JJ concluded that wilful disobedience of a court order which amounted to 'public defiance' could convert what would otherwise be a civil contempt into a criminal contempt.
2. A finding of contumacy may require consideration of the state of mind of the contemnor. As outlined by the Full Court of the Federal Court in Kazal v Thunder Studios Inc (California) and Anor:[107]

Aggravation by way of conduct and a state of mind found to be contumacious can be seen to be on a sliding scale. For example, it may range from deliberate and wilful defiance, to an unsuccessful attempt to get around a prohibition, to an unsuccessful attempt to comply with a prohibition. Proven recklessness or carelessness may be seen not to be contumacious at all. This process of characterisation is inevitably driven by close attention to what was done. This includes what can be said about state of mind able to be ascertained from all of the evidence, including by way of inference.

1. In addition to elevating a failure to comply with a court order or undertaking from a civil contempt to a criminal contempt, contumacy is also relevant to penalty.[108]
2. I am required to be satisfied beyond reasonable doubt that the breaches of the Harman undertaking were contumacious. The burden of proof lies on Mr Hilton in this regard.

Why Mr Hilton says Mr Kelly's conduct was contumacious

1. Mr Hilton submits Mr Kelly's conduct is properly characterised as contumacious, as at all material times Mr Kelly was aware of the Harman undertaking and nonetheless proceeded to make the disclosures which breached the Harman undertaking.
2. Mr Hilton also submits that Mr Kelly's explanation for his breaches of the Harman undertaking should not be accepted for the following broad reasons:

(a) Mr Kelly was willing to lie to avoid disclosure of his breaches, and therefore his evidence should be rejected except where it is contrary to his own interests or corroborated by contemporaneous documents; and

(b) Mr Kelly's evidence that he was angry and frustrated on the occasion of each breach, such that he did not have the Harman undertaking in his mind, is incredible and should be rejected. Further, it is not relevant.

1. Mr Kelly's evidence in relation to his reasons for sending the communications to Mr Pheng and Mr Klopper is set out earlier in these reasons.
2. In relation to his communications with the regulatory authorities, Mr Kelly gave evidence that he had been communicating with officers from the ASX, ASIC and the WA Police between July 2020 and November 2020 outlining his concerns about the conduct of both Mr Hilton and Riversgold in relation to the Cambodian gold tenements.[109] However, none of the regulatory authorities had taken any action.
3. Mr Kelly commenced the substantive proceedings in December 2020. Mr Kelly continued engaging in email communications with ASIC, ASX and WA Police after commencing the substantive proceedings. These communications occurred throughout 2021 and 2022. Mr Kelly's evidence is that he was told by the regulatory authorities that if he had any further evidence of misconduct, he should provide it to ASIC.[110]
4. Mr Kelly gave evidence that he views the MME Letter as being significant to his case as it shows that Cambodia Gold had not applied for the Cambodian gold tenements as Mr Hilton had represented, because the MME Letter states that the area was not yet open for application.[111] Accordingly, Mr Kelly deposed that he was angry that he only saw the MME Letter for the first time during the substantive proceedings and that it was not disclosed by Mr Hilton to him earlier in their dealings.[112]
5. Mr Kelly's evidence was also that the Draft Terms Sheet is significant to his case as it proposes that Riversgold become the owner of Granite Gold, another company controlled by Mr Hilton, on the basis that Granite Gold had applied for licences covering the same area as the Cambodian gold tenements purportedly applied for and to be held by Cambodia Gold. Mr Kelly deposed that the Draft Terms Sheet was significant because it showed that Mr Hilton had concerns about the Cambodian gold tenements being granted and was concerned enough to have another company submit competing applications.[113]
6. Mr Kelly also deposed that there were other documents provided by Mr Hilton during discovery which he reviewed and which he considered significant in terms of his case against Mr Hilton. It is not necessary to identify each of those documents. However, Mr Kelly deposed that these various other documents, in his view, demonstrated the closeness of the relationship between Mr Ford (who was appointed the CEO of Riversgold in July 2021) and Mr Hilton. Further, that Mr Ford was aware, or ought to have been aware, of the information Mr Kelly had provided to Riversgold about his concerns regarding the information provided by Mr Hilton regarding the Cambodian gold tenements, and Riversgold had not acted on that information.[114]
7. Mr Kelly also deposed that he viewed the ASX announcement released by Emerald Resources on 19 October 2022 as definitive proof of his suspicion that Cambodia Gold had not previously submitted valid applications for explorations licences for the Cambodian gold tenements, and that Riversgold had no reasonable basis to expect that Cambodia Gold would be granted those licences in 2020 or at all.[115]
8. Mr Kelly's evidence is that having reviewed the MME Letter, the Draft Terms Sheet and the other significant discovered documents, Mr Kelly became increasingly angry and frustrated that neither ASIC nor the ASX had acted on the information he had previously provided to them prior to commencing the substantive proceedings in 2020 and 2021. Mr Kelly deposed that he was also particularly upset because he considered that the board of Riversgold (and Mr Ford as CEO) were continuing to rely on Mr Hilton and were providing responses to the ASX which Mr Kelly considered to be false or misleading and/or to be critical of Mr Kelly.[116]
9. Mr Kelly deposed that:[117]

1. My increased level of anger and frustration prompted me to contact ASIC and the ASX again with new information that I had obtained in these proceedings. I decided to contact ASIC and the ASX again because I wanted:

(a) Riversgold to stop misleading the market and correct the position about the Purported CGPL Applications. I hoped that ASIC or the ASX would force Riversgold to correct the position;
>
> (b) the true position with respect to the Purported CGPL Applications to be revealed so that my name would be cleared with shareholders and investors in Riversgold who I felt still blamed me for the losses that Riversgold suffered by reason of the withdrawal of the Purported CGPL Applications, a belief I feel was encouraged by Riversgold as indicated in their correspondence with ASX;
>
> (c) to clear my name in the minds of ASIC and the ASX with respect to Riversgold's purchase of the Purported CGPL Applications, in particular because I felt that the ASX held suspicions about me competing with Riversgold for the CGPL Applications (which was alluded to by Riversgold in the draft letter to the ASX at paragraph 52 above).

1. I was so motivated by my anger towards Riversgold, my desire for the misinformation to be corrected and my interest in clearing my name that, on each occasion when I contacted them, I did not consider or think of the implied obligation.
2. Mr Kelly's evidence was that because he felt so angry and frustrated, the implied obligation did not occur to him when he sent the communications to ASIC, the ASX and the Western Australian Police.[118] Mr Kelly's evidence was also that he wanted to get the information to the regulators so they could do something about it.[119]

1. Mr Kelly did not present as a credible witness. Whilst I do not doubt that Mr Kelly feels strongly about the strength of his case, and the alleged wrongdoing on the part of Mr Hilton, Mr Kelly's actions and evidence were less than satisfactory in a number of respects.
2. First, Mr Kelly was not truthful to his own lawyers or the lawyers for Mr Hilton when questions were first asked of him in relation to whether he had engaged in conduct amounting to breaches of the Harman undertaking. Mr Hilton's solicitors first raised possible breaches of the Harman undertaking with Mr Kelly's solicitors in correspondence dated 4 November 2022.[120] In that letter, Mr Hilton's solicitors refer to Mr Kelly's correspondence with Mr Pheng and request confirmation as to whether Mr Kelly had provided or disclosed discovered documents to any person who is not a party to the proceedings or their legal adviser, and if so to provide details as to whom, which documents were disclosed and the reasons for so doing. Mr Kelly accepted that he understood at the time what was being asked of him in the letter.[121]
3. Mr Kelly's evidence is that he did not tell his solicitors the truth in response to this letter, and he only told his solicitors about his correspondence with Mr Pheng.[122] As a result of these instructions, Mr Kelly's solicitors responded to that correspondence by letter dated 11 November 2022.[123] That letter referred only to the correspondence with Mr Pheng and did not fully answer the questions contained in the original correspondence. Mr Kelly approved the letter sent by his solicitors.[124]
4. Mr Hilton's solicitors then wrote a further letter to Mr Kelly's solicitors dated 14 November 2022.[125] That correspondence engaged with the question of the appropriateness of the correspondence to Mr Pheng, and again asked questions as to whether Mr Kelly had provided or disclosed discovered documents to any person who is not a party to the proceedings or their legal adviser, and if so to provide details as to whom, which documents were disclosed and the reasons for so doing. Mr Kelly accepted that he understood at the time what was being asked of him in this second letter.[126]
5. At this stage, Mr Kelly advised his solicitors of his communications with Mr Klopper, but not any of his other communications which are now the subject of the Committal motion and the Purge application.[127] As a result of these instructions, Mr Kelly's solicitors wrote a further letter to Mr Hilton's solicitors dated 7 December 2022, advising of the communication with Mr Klopper and concluding:[128]

There is no basis whatsoever for the implicit accusation made in your letter that Mr Kelly has acted in breach of the substantive obligation which he owes, as referred to in Hearne v Street.

1. Mr Kelly approved the letter sent by his solicitors.[129] The instructions Mr Kelly provided to his solicitors were false. The true position was only communicated by Mr Kelly's solicitors to Mr Hilton's solicitors by letter dated 31 March 2023.[130] This communication did not occur until after Mr Hilton had issued subpoenas to ASX and ASIC in November 2022.[131]
2. Second, Mr Kelly's explanation of why he did not provide truthful answers in response to these letters was not full and frank, and was at times difficult to follow and contradictory.
3. No explanation is provided in Mr Kelly's first affidavit as to why he did not tell his solicitors and Mr Hilton's solicitors the true position after receiving the 4 November 2022 letter. The explanation provided in Mr Kelly's first affidavit in relation to his actions after the 14 November 2022 letter is as follows:[132]
   1. I discussed this letter with HHG Legal after receiving it.
   2. I was feeling very overwhelmed at this time, including because of steps that were being taken by Mr Hilton in these proceedings. On 16 November 2022, I became aware that Mr Hilton had issued 7 subpoenas to third parties seeking documents relevant to this case. I felt under attack and as a result was not thinking clearly.
   3. I did not tell HHG Legal about any of the disclosures that I describe above other than my communications with Mr Klopper. I told them about my communications with Mr Klopper because I specifically remembered that it was similar to my communications with Mr Pheng, which Bennett were asking questions about. At the time, I did not think of the other communications that I describe above.
   4. I did not undertake a review of my email records so that I could provide full instructions to HHG Legal.

1. I made a mistake in not telling HHG Legal about all of the disclosures that I describe above. I unreservedly apologise to HHG Legal and to Bennett that I did not take the time to properly consider and answer the questions that were asked of me.
2. Mr Kelly accepts that the above evidence was not full and frank.[133]
3. In cross-examination, Mr Kelly's evidence as to why he did not tell his lawyers the truth after receiving the first letter was:[134]

Why did you not identify any of the other people you had sent documents to?---I - I was - I felt I was under pressure and made a mistake and - and realised that I had probably done the wrong thing by referring information to ASIC, the ASX and the police. And so I didn't advise my lawyers of that at the time. I made a mistake.

1. In cross-examination, Mr Kelly explained why he had lied in response to the second letter as follows:[135]

And you knew it to be false?---Yes.

And you allowed it to be sent to Mr Hilton's solicitors?---Yes, I made a mistake.

Well, why did you make the mistake?---I panicked after I had been issued with the subpoenas.

Well, you weren't issued with subpoenas, were you?---Sorry?

There was no subpoena issued to you, was there?---Sorry, when I had seen the issue of the subpoenas to the various parties, I panicked.

1. However, later in his cross-examination, Mr Kelly's evidence was that he did not tell anyone about his communications with ASX and ASIC because he thought that his communications with these bodies were confidential:[136]

Now, is it true, Mr Kelly, that you believed that you had some form of protection in your communications with ASX based on confidentiality?‑‑‑Yes.

Did you believe that in December of 2022?---Yes.

And did you believe it in November of 2022?---Yes.

Did you believe that that protection from disclosure by ASX meant that they wouldn't disclose the information that you had given them?---Yes, I did at the time. Yes.

Is that why you don't refer to the ASX communications in your letter of 7 December 2022?---Yes, that's right.

So you deliberately withheld that information because you didn't think Mr Hilton would find out?---I thought I was speaking to the ASX in confidence.

Is the answer to my question yes?---Yes.

Was it the same with ASIC?---Yes.

Was that because you thought you were a whistle-blower?---Yes.

You thought the whistle-blower protections would mean that Mr Hilton wouldn't find out what you had told ASIC?---Yes.

And that's why there's no reference to them in your letter of 7 December?---Yes.

1. Mr Kelly was cross-examined about paragraph 103 of his first affidavit where he deposed that he did not undertake a review of his email records so he could provide full instructions to his solicitors.[137] However, in cross-examination Mr Kelly accepted that he knew, without undertaking a review of his emails, that he had made disclosures to ASX and ASIC.[138]
2. Further, Mr Kelly was cross-examined about paragraph 105 of his first affidavit where he deposed as follows:

I made a mistake in not telling HHG Legal about all of the disclosures that I describe above. I unreservedly apologise to HHG Legal and to Bennett that I did not take the time to properly consider and answer the questions that were asked of me. (emphasis added)

1. It was put to Mr Kelly in cross-examination that the emphasised words were false, as he had understood the questions asked of him at the time. Mr Kelly appeared at first to accept this part of the sentence was incorrect, before then indicating (for the first time) that he was unsure if the letters were asking about individuals or organisations. Mr Kelly's evidence in the following passage is inconsistent and unsatisfactory:[139]

You had considered the questions that had been asked of you on - by the letter of 7 December 2022, hadn't you?---Yes, I had.

You understood what had been asked of you?---Yes, I did.

And you had understood what had been asked of you in the letter of 4 November 2022?---Yes.

So when you say in paragraph 105 that you apologise for not taking the time to properly consider the questions, that's not true, is it?---I didn't tell HHG Legal about ASX, ASIC and West Australian Police.

No?---No. Because I didn't - - -

When?--- - - - consider it properly.

When you say at paragraph 105 that you did not take the time to properly consider the questions that were asked of you in the correspondence, that's not true, is it? You had considered the questions, hadn't you?---Yes, I had.

It's a false statement to say that you didn't properly consider them, isn't it?---Yes, I made a mistake at the time by not giving them the full information.

But when you said in April 2023 on oath that you had not taken time to properly consider the questions, I'm only asking you about considering the questions, that wasn't true, was it?---When I answered the questions, I didn't provide all the information that I should have at the time.

That's the answer. Do you agree with me that what you say at paragraph 105 is in two parts, and the second sentence, not taking the time to consider the questions, and the separate part is not properly answering?‑‑‑Yes, I didn't answer it properly.

But you accept that you had considered the questions and you did understand them?---Yes.

So when you said you didn't take the time to properly consider them, it wasn't true, was it?---I considered it, but I didn't answer it properly.

...

You knew that this sentence in paragraph 105 of your affidavit was false when you swore it, didn't you?---That was my recollection at the time I made the affidavit.

In April 2023, your recollection was you hadn't properly considered the letters in December 2022?---I hadn't provided HHG Legal with everything at the time, no.

No, I'm only asking about considering the letters, understanding the letters, understanding what you had to do?---At the time I wasn't sure if the disclosures to ASIC and the ASX fell - fell within those questions.

Really?---Yes.

So you were being asked about disclosure of information to any person?---Yes.

You didn't think that might refer to Sergeant Dowson?---I wasn't sure about the police at the time.

You didn't think it might refer to people at the ASX?---No, I - I thought they were regulators, so they - I thought that that was - you know, that was covered by confidentiality.

So you didn't think they were people?---No, I didn't think they were people.

And is it the same for people who work for ASIC, they're not people either?---I didn't think they were people, no. It was ASIC.

So - but you were writing to individuals, weren't you?---I was writing to ASIC.

1. In re-examination Mr Kelly's explanation for not telling the truth was that he panicked and that he was overwhelmed, frustrated and angry, and he accepted that he had done the wrong thing and should have been more open, honest and upfront at the time.[140]
2. Even making all due allowance for Mr Kelly finding these proceedings to be stressful; Mr Kelly being under strain since the allegations of a failure to comply with the Harman undertaking were first raised in November 2022; Mr Kelly being in a state of panic once the allegations were first raised; and Mr Kelly's acceptance that he did the wrong thing, Mr Kelly's inability to provide a full and frank and consistent explanation for his failure to tell the truth when confronted with possible breaches of the Harman undertaking and when bringing the Purge application counts against his credibility.
3. Third, Mr Kelly's first affidavit in support of his Purge application did not contain all communications that might possibly have breached the Harman undertaking. Rather, Mr Kelly was required to swear a second affidavit containing further communications and possible breaches of the Harman undertaking.
4. In his second affidavit, Mr Kelly's explanation for swearing a second affidavit is as follows:[141]

I make this affidavit as a result of it coming to my attention, subsequent to my First Affidavit, that I made additional communications of information which I received by reasons of these proceedings.

1. Mr Kelly's explanation for not including some of the communications in his first affidavit was that he forgot about the communications until he came to prepare the second affidavit (eg. to Mr Hart, Mr Jones, Ms Rezos and Ms Bush).
2. Mr Kelly's explanation for identifying additional communications with the Western Australian Police is that these documents were shown to him by his solicitors after they were subpoenaed by Mr Hilton.[142] Mr Kelly then deposed that he undertook additional IT searches with the assistance of professionals and identified some other communications which he did not independently recall, and that his previous searches had only identified the one email referred to in his first affidavit.[143]
3. Mr Kelly was cross-examined on his communications with the Western Australian Police. During that cross-examination Mr Kelly accepted that he knew at the time he swore his first affidavit that he had other communications with the Western Australian Police that he had not included in his first affidavit because he could not find them:[144]

Now, in your first affidavit, you referred, on 16 October 2021, to sending an email to Sergeant Dowson of the WA Police, Detective Sergeant Dowson.

...

The attachment is AJK40?---Yes.

The page number is 386?---Yes, I've got it.

Do you recall sending that email?---Yes.

Now, when you came to swear this affidavit, your first affidavit in April of 2022, did you read the affidavit before you signed it?---?---Yes, I did.

Did you read the attachments?---Yes, I did.

Did you read this document here?---Yes, I did.

When you read it, did it suggest to you that you had other communications with Detective Sergeant Dowson?---Yes.

Did you attach those documents to your first affidavit?---No, I didn't.

Why was that?---I couldn't find some of them, and I had also had technical problems with my computer and I had lost a lot of emails that I had to recover.

You couldn't find some of them, but you could find others; is that right?---That's right.

Others to Detective Sergeant Dowson?---Yes.

Didn't disclose them in this affidavit?---That's right.

Why?---I couldn't find the - the - I couldn't find the documents, or I had lost the documents, or they had been deleted.

1. Mr Kelly's first affidavit does not mention these additional documents which he could not locate.
2. Mr Kelly submits that it was not squarely put in cross-examination that there were any additional written communications with the Western Australian Police which were not included in the first affidavit. I do not accept this submission. A fair reading of the exchange reproduced above reveals that Mr Kelly was being asked about communications including written communications, and that by his answer he understood that to be the question.
3. Not all of the communications identified in the second affidavit form part of the Committal motion. Some form part of the Purge application and others are provided for background and context. It is entirely appropriate that Mr Kelly identify all possible breaches of the Harman undertaking as part of his Purge application, including by way of a second affidavit if required. The first affidavit was sworn in April 2023, which is itself five months after the allegations of the breach of the Harman undertaking were first raised. The Purge application is a serious application requiring full disclosure. I do not find that Mr Kelly deliberately withheld communications from his first affidavit. However, the fact that so many could be forgotten or overlooked, and that Mr Kelly did not include in his first affidavit that he had further communications with the Western Australian Police that he could not locate, despite knowing this, is one factor that counts against his credit.
4. In light of the above matters, I find that Mr Kelly was a witness who has a history of not being full and frank when faced with allegations of doing the wrong thing. Mr Kelly did this both when originally confronted about his possible breaches of the Harman undertaking, and again in these proceedings when explaining his reasons for not being honest. As a result, I have proceeded on the basis that careful scrutiny should be given to Mr Kelly's explanations for his actions and his state of mind. I have proceeded on the basis that Mr Kelly's evidence should be treated cautiously unless it is against his interest, or is supported by or is consistent with contemporaneous documents, or it is logical or consistent with ordinary human experience.

1. I am satisfied beyond reasonable doubt that at the time of each communication Mr Kelly was generally angry and frustrated with Mr Hilton for his alleged behaviour; with Mr Pheng and Mr Klopper for their possible involvement; with Riversgold for not correcting what he considered to be incorrect information; and with the various regulatory authorities for their lack of action in response to Mr Kelly's communications to them. I have reached this conclusion for the following reasons.
2. First, the nature of the substantive proceedings as pleaded is such that Mr Kelly is clearly of the view that Mr Hilton has engaged in misleading or deceptive conduct and that Mr Kelly feels that both he and Riversgold were misled by Mr Hilton.
3. Second, I accept that Mr Kelly held the view that the MME Letter, the Draft Terms Sheet and the other discoverable documents were significant to his case. I have formed this view based on the content of the documents; the possible significance of them to Mr Kelly's case as pleaded; and Mr Kelly's contemporaneous communications with other individuals such as Mr Moir, Mr Stanger and Mr Hart, where he expresses his views as to the significance of these documents to his case. I also observe that it has not been submitted that Mr Kelly's view in this regard was not genuinely held or unreasonable.
4. Third, having accepted Mr Kelly's evidence as to his view of the relevance of the documents to his case, I accept that it is consistent with ordinary human experience for Mr Kelly to be upset that he was not made aware of these documents as at the date of the documents. On Mr Kelly's case, these documents support Mr Kelly's suspicions that Cambodia Gold did not have any licences to mine the Cambodian gold tenements, which was important information for Mr Kelly and Riversgold to be aware of when agreeing to purchase Cambodia Gold. I also accept that it is consistent with ordinary human experience for Mr Kelly to be upset that the regulatory authorities had not taken any action in response to his communications. On Mr Kelly's case, these documents provide proof of the claims he had been making to the regulatory authorities, and which those authorities had not acted on. In these circumstances, I do not consider Mr Kelly's evidence that he was angry and frustrated to be inherently incredible.
5. Fourth, the communications themselves reveal, to varying degrees, Mr Kelly's anger or frustration. The text of the communications to Mr Pheng and Mr Klopper (which are set out earlier in these reasons) is expressed in words and a tone consistent with Mr Kelly's anger and frustration.
6. The text of the communications to the regulatory authorities is different to those sent to Mr Pheng and Mr Klopper. These communications are longer and more formal. Whilst the tone of these communications does not reveal anger, I am satisfied that they reveal Mr Kelly's general frustration that no action has been taken by the regulatory authorities. Each of the communications contain detailed information as to why Mr Kelly considers Mr Hilton and Riversgold have engaged in misleading conduct. Mr Kelly's frustration that no action has been taken can be seen from the text. For example, in the email the subject of charge 2, Mr Kelly concludes:[145]

I am therefore again asking for your assistance in pursuing this matter, in light of the recent information.

1. In the letter the subject of charges 3 and 4, Mr Kelly concludes: [146]

I have multiple documents to support each of the statements made above and look forward to your response and action finally being taken in relation to this multi-million dollar fraud.

1. This general level of frustration is evident in all the communications to the regulatory authorities.
2. Fifth, the breaches of the Harman undertaking each concerned a significant (from Mr Kelly's perspective) disclosure event, such that I do not consider it to be unreasonable for Mr Kelly to be angry and frustrated at the time of sending each communication.
3. In this regard, charge 2 is an email sent in October 2021, being after Mr Kelly received the MME Letter in August 2021. The email expressly refers to receiving the MME Letter in August 2021, and outlines why Mr Kelly considers the MME Letter to be significant.
4. Charges 3, 4, 6 and 11 (which concern communications sent in July, September and October 2022), each occurred after Mr Kelly had received discovery from Mr Hilton. Each of these communications expressly refer to Mr Kelly receiving information as part of the discovery process.
5. Charges 12, 13 and 15 are communications sent in October 2022, after the release of the Emerald Resources ASX announcement on 19 October 2022.
6. In reaching this conclusion I have not overlooked my findings as to Mr Kelly's credibility. However, for the reasons outlined above, I am satisfied that the text of the various communications, together with the objective facts surrounding the nature of the substantive proceedings (including the pleadings); the possible significance of the MME Letter and the Draft Terms Sheet to the pleaded case; Mr Kelly's contemporaneous communications with other individuals; and ordinary human behaviour support Mr Kelly's evidence as to his state of mind. For these reasons, I accept this aspect of Mr Kelly's evidence and I find that Mr Kelly was generally angry and/or frustrated at the time of sending the communications.

1. In addition to finding that Mr Kelly was generally angry and frustrated at the time he sent the communications, I am also satisfied beyond reasonable doubt that Mr Kelly's motivation in sending the communications was, partly, to seek vindication for his allegations.
2. I have formed this view based on the text and tone of the communications to Mr Pheng and Mr Klopper, where Mr Kelly is either not asking any questions (Mr Pheng) or is asking rhetorical questions in an accusatory tone (Mr Klopper). The messages read as someone boasting that they now know the true position.
3. The text of the communications with the regulatory authorities is also consistent with Mr Kelly being of the view that he now had additional, significant information and documents to support his claims. The communications go on to set out his claims and supporting documents and information in some detail; refer back to his previous correspondence; and request that the authorities now take action. Mr Kelly accepted that he was writing to the authorities to get them to take action against Mr Hilton and to stop Riversgold from lying to the market.[147]
4. The text of Mr Kelly's contemporaneous communications with other individuals (eg. Mr Stanger, Mr Moir and Mr Hart) is also consistent with Mr Kelly being of the view that, with the MME Letter and the Draft Terms Sheet, he now has documents that will enable him to prove his case, and that demonstrate that others concealed information from him or misled him.

Relevance of anger, frustration and vindication

1. The fact that Mr Kelly was angry and frustrated when he sent the various communications, and that he was seeking vindication, is not the central question. The question is ultimately whether Mr Kelly's breaches of the Harman undertaking were deliberately defiant. The issue of Mr Kelly's anger and frustration is relevant only to the extent of determining whether or not the breaches were deliberately defiant. Mr Kelly says that the breaches were not deliberately defiant because he did not have the Harman undertaking at the forefront of his mind on the occasion of each breach because of his anger and frustration and because he had been engaging in communications with the regulators for some time.
2. The question is therefore whether I consider Mr Hilton has established beyond reasonable doubt that Mr Kelly deliberately defied the Harman undertaking on each occasion. Mr Kelly's feelings and motivations are relevant to this question.

1. I am satisfied that Mr Hilton has established, beyond reasonable doubt, that Mr Kelly's breaches of the Harman undertaking were deliberately defiant, and therefore contumacious. I have reached this conclusion for the following reasons.
2. First, Mr Kelly was aware of the requirements of the Harman undertaking from 22 February 2021, and was aware that he could not use documents obtained in the substantive proceedings for any purpose unrelated to the proceedings without leave of the court.[148] Mr Kelly also accepted in cross-examination that since February 2021, he understood that a breach of the Harman undertaking was a contempt of court and that a person in breach was liable to serious penalties, including imprisonment.[149]
3. Second, Mr Kelly did not give evidence that he did not understand that the Harman undertaking applied to communications with ASIC, ASX, the Western Australian Police, or regulatory authorities in general. In cross-examination Mr Kelly accepted that he understood that the Harman undertaking did apply to communications with regulatory authorities.[150] Mr Kelly submits that the relevant passage in cross-examination was concerned with Mr Kelly's understanding as at the present, and not at the time of the communications. I do not accept this submission. Mr Kelly was being cross-examined about his second application for a release from the Harman undertaking and whether that caused him to consider the October 2022 communications with regulatory authorities. The relevant passage is as follows:[151]

When you swore that affidavit, did that cause you to think that in the last few days you had disclosed information to Sergeant Dowson, the ASX, and ASIC?---No, it didn't.

It didn't cross your mind?---No, it didn't.

Did you think - you don't think there was some exemption for any one of those entities, do you?---No.

You understood it applied to each of them?---Yes.

So it just never crossed your mind?---No, it didn't. Not at the time.

1. Mr Kelly was asked and accepted that he did not think that the Harman undertaking did not apply to the regulatory authorities, but rather that it simply did not cross his mind at the time of the communications.
2. Third, in the course of the substantive proceedings, Mr Kelly made two applications to be released from the Harman undertaking in relation to specific documents. The first application was made on 28 May 2021 and was granted.[152] The second application was made on 25 October 2022, and sought leave to use documents discovered or produced pursuant to subpoenas in the substantive proceedings in separate defamation proceedings commenced by Mr Hilton against Mr Kelly.[153] Mr Kelly swore an affidavit on 25 October 2022 in support of that application.[154] In relation to this application, on 10 October 2022, Mr Kelly's solicitors wrote to Mr Hilton's solicitors seeking to ascertain Mr Hilton's attitude to orders being made releasing Mr Kelly from the Harman undertaking so that he may brief senior counsel in relation to the defamation proceedings and inviting conferral.[155] Mr Kelly accepted that on or about 10 October 2022 he instructed his lawyers to make the second application.[156]
3. Accordingly, Mr Kelly was aware of the requirements of the Harman undertaking and the ability to obtain a release to use the discovered documents prior to each of the breaches. It is particularly significant that the communications to Mr Pheng and Mr Klopper (charges 7, 8, 9 and 10) occurred on 16 October 2022, and four of the communications with the regulatory authorities (being charges 11, 12, 13 and 15) occurred on 16 and 21 October 2022. These particular communications occurred only a short time after Mr Kelly had instructed his lawyers to make the second application for leave to be released from the Harman undertaking.
4. Fourth, I have not found Mr Kelly to be a credible witness. Accordingly, I do not accept Mr Kelly's explanation for the communications and his state of mind unless it is against his interest, supported by contemporaneous documents or it is logical or consistent with ordinary human experience.
5. Fifth, Mr Kelly breached the Harman undertaking on 12 occasions over a period of approximately one year. The majority of the breaches occurred over a four-month period between July 2022 and October 2022.
6. Sixth, Mr Kelly's evidence, which I accept for the reasons outlined above, is that he was angry and frustrated when he sent each of the communications. Mr Kelly submits that he was so angry and frustrated that the Harman undertaking simply did not occur to him at the time of each communication. That is, Mr Kelly did not forget about the Harman undertaking entirely, but rather that the Harman undertaking was not in the forefront of his mind at the time of each communication. Mr Kelly submits that there is a difference between knowing something, and having it in your mind at a particular point in time.
7. I do not accept this to be a credible explanation, given the other matters I have referred to. This is not a situation where there has been an isolated breach or a small number of breaches of the Harman undertaking or a momentary lapse of judgment where such an explanation may be understandable. Mr Kelly engaged in a sustained course of conduct, having breached the Harman undertaking on 12 different occasions. I do not accept Mr Kelly's explanation that the Harman undertaking did not occur to him on 12 separate occasions, especially when he was aware of the obligation to seek a release from the Harman undertaking and in circumstances where nine of the breaches were in the same month that he was instructing his solicitors to apply for a release from the Harman undertaking regarding other documents.
8. Rather, I am satisfied beyond reasonable doubt that Mr Kelly was so angry and frustrated with Mr Pheng and Mr Klopper that he could not resist sending each of the messages indicating that he was aware of the MME Letter and the Draft Terms Sheet, notwithstanding the requirement of the Harman undertaking and his knowledge and understanding of it. I am satisfied that Mr Kelly sent these messages, in part, out of a desire to obtain vindication for his claims and because he felt personally let down by each of Mr Pheng and Mr Klopper.
9. I am also satisfied beyond reasonable doubt that Mr Kelly was so frustrated with the various regulatory authorities for not taking action on his concerns, and for not accepting his complaints, that he chose to prepare detailed correspondence to those regulatory authorities outlining his case, including referring to the MME Letter and the Draft Terms Sheet, to demonstrate the strength of his case and to again attempt to have the regulatory authorities believe him and take action against Mr Hilton and/or Riversgold, notwithstanding the requirement of the Harman undertaking and his knowledge and understanding of it. I am satisfied that Mr Kelly sent these messages, in part, out of a desire to obtain vindication for his claims.
10. Seventh, Mr Kelly's communications with the regulatory authorities were detailed communications that would have taken some time to draft before being sent. Mr Kelly's evidence was that each communication was carefully considered.[157] In relation to the communications sent on 21 October 2022 (charges 12, 13 and 15) each was sent after Mr Kelly had already sent his communications to Mr Pheng and Mr Klopper, and then realised that it was wrong to send those communications and deleted them. I do not accept Mr Kelly's evidence that he did not think of the Harman undertaking for the entire time it took to write each of these communications and to send them after he had sent and deleted the communications to Mr Pheng and Mr Klopper.
11. In all the circumstances, Mr Kelly's actions, including his other contemporaneous messages to other individuals, are consistent with someone who has a very strong belief that he has been wronged by the actions of Mr Hilton, and feels that he has not been believed by the board of Riversgold and the various regulators. Mr Kelly's actions are consistent with someone who has obtained documents which he considers vindicates his position, and he wants to ensure that he receives that vindication. Mr Kelly's actions are consistent with someone who has allowed his anger and frustration and desire for vindication to control his actions and he has made 12 deliberate decisions to communicate information and documents notwithstanding the requirements of the Harman undertaking, of which he was aware.
12. In reaching this conclusion I have not overlooked the fact that Mr Kelly is not a lawyer and he had been communicating with the regulatory authorities for some time. Mr Kelly submits that it is entirely plausible that a person in Mr Kelly's position - being a lay person who has been communicating with the regulatory authorities for some time - may not have in his mind at the time of the communications the requirements of the Harman undertaking.
13. However, this is not a situation where Mr Kelly has given evidence that he did not understand that the Harman undertaking applied to regulatory authorities. Not only was Mr Kelly aware of the Harman undertaking, but he was also aware that he could apply for a release, and he did that on two occasions. Further, this is not a situation where Mr Kelly breached the Harman undertaking on only a limited number of occasions. In these circumstances, Mr Kelly's status as a lay individual and his history of past communications with the regulatory authorities does not explain the repeated breaches of the Harman undertaking. The facts of the present case are very different from the facts in the decision of Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd,[158] referred to by Mr Kelly in his submissions.
14. I am therefore satisfied beyond reasonable doubt that Mr Kelly's actions in breaching the Harman undertaking were contumacious.

Has Mr Kelly committed the remaining charges of contempt alleged in the Committal motion?

1. The remaining charges in the Committal motion are not concerned with breaches of the Harman undertaking, but rather allege that Mr Kelly has interfered with the administration of justice as follows:

(a) by sending an email which revealed information disclosed in a court ordered mediation conference (charge 16);

(b) by disclosing documents and information for the purpose of seeking to cause the regulatory authorities to take adverse action against Mr Hilton as retribution for his defence of the substantive proceedings (charges 17 - 19); and

(c) by sending messages which were intended or calculated to discourage or dissuade potential witnesses from giving evidence in the substantive proceedings (charges 20 - 21).

1. Charge 16 concerns an email sent by Mr Kelly to Detective Sergeant Paul Dowson of the Western Australian Police on 9 April 2022.[159] Charge 16 corresponds with item 6E of the Purge application and provides as follows:

The First Plaintiff is guilty of a criminal contempt by reason of his conduct on 9 April 2022 at 11:01 am in sending an email to Paul Dowson of the Western Australian Police which email disclosed details of communications between the First Plaintiff and the Defendant during the course of a Court ordered mediation between them on 9 February 2022, and thereby interfering with the administration of justice.

1. By order 4 made 25 November 2021, Strk J referred the parties to mediation pursuant to the Supreme Court Act.[160] The mediation conference occurred on 9 February 2022,[161] and Mr Kelly attended.[162]
2. Mr Kelly accepted in cross-examination that he knew that after he came out of the mediation conference that anything discussed in the mediation conference was not to be disclosed to others.[163]
3. On 9 April 2022 (2 months after the mediation conference) Mr Kelly sent the email to Detective Sergeant Paul Dowson, and in this email Mr Kelly disclosed details of what Mr Hilton said during the mediation conference. I have not set out the details of the email owing to the confidential nature of the information.
4. Mr Kelly's explanation for the email is as follows:[164]

After you came out of the mediation you understood that anything in the mediation wasn't to be discussed, wasn't it?---Yes.

You told Sergeant Dowson something that had happened in the course of the mediation, didn't you?---Yes.

And you knew that you weren't to disclose anything that had happened in mediation?---Yes.

You told Sergeant Dowson anyway?---Yes. Yes. I made a mistake and I regret that.

You made a mistake?---Yes.

How is it a mistake when you know something is forbidden and then you do it anyway?---At the time I didn't think about what the obligations were, I just said it.

All right. So it wasn't a mistake to tell him, it was you didn't think about the obligation?---It was both. I didn't think about it and then I realised I had made a mistake afterwards.

When did you realise you had made a mistake?---I can't remember specifically.

What did you do about it?---I didn't do anything about it.

You kept it to yourself?---Yes.

Did you realise you had made that mistake before you swore your affidavit in April 2023?---I didn't think about it at the time I swore that affidavit.

You had forgotten it, had you?---I looked for emails with Sergeant Dowson. I didn't find that one, so I didn't have a recollection of it, no.

1. Mr Kelly's evidence is also that he had been communicating with the Western Australian Police prior to commencing the substantive proceedings, and continued after the proceedings were commenced.[165] During some of those communications, Mr Kelly was told by Detective Sergeant Dowson to provide further information as it arose.[166]

Did Mr Kelly fail to comply with the confidentiality requirements?

1. I am required to be satisfied that Mr Kelly has committed contempt beyond reasonable doubt.
2. The order of Strk J referring the parties to mediation is as follows:[167]
   1. The case be referred to mediation pursuant to Supreme Court Act 1935 (WA), part VI.
3. Strk J also ordered:
   1. At least 14 days prior to the mediation conference, the solicitors for the parties give their clients a copy of the Court brochure 'Mediation - What you need to know'.
4. The mediation conference was held on 9 February 2022 and the mediator was Registrar Griffin.[168]
5. Part VI of the Supreme Court Act applies to a 'mediation under direction', being a mediation carried out by a mediator (which includes a registrar appointed by the Chief Justice to be a mediation registrar under the rules of court) under a direction of the court under and subject to the rules of court.[169]
6. Section 71 of the Supreme Court Act relevantly provides as follows:

(1) Subject to subsection (3), evidence of -

(a) anything said or done;

(b) any communication, whether oral or in writing; or

(c) any admission made,

in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body.

(a) any document prepared in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction;

(b) any copy of such a document; or

(c) evidence of any such document,

is to be taken to be subject to a duty of confidence and is not admissible in any proceedings before any court, tribunal or body.

1. None of the exceptions in s 71(3) are relevant to the present case.
2. Kenneth Martin J, in the decision of C v M,[170] outlined the scope of the confidentiality requirements of Part VI of the Supreme Court Act. I respectfully agree with and adopt that outline, the result of which is that any communication falling within the scope of s 71(1) is taken to be in confidence and cannot be disclosed to a third party unless falling within one of the exceptions, or possibly with permission of the court. No party submitted differently in this case.
3. On the basis of the evidence before me, I am satisfied beyond reasonable doubt that:

(a) the mediation conference held on 9 February 2022 was a 'mediation under direction' for the purposes of Part VI of the Supreme Court Act;

(b) Mr Kelly was under an obligation of confidence not to disclose any communications made by Mr Hilton during the court ordered mediation conference held on 9 February 2022 to a third party;

(c) Mr Kelly was aware of this obligation of confidence at the conclusion of the mediation conference; and

(d) Mr Kelly, by his email to Detective Sergeant Dowson on 9 April 2022, did disclose communications made by Mr Hilton during the mediation conference held on 9 February 2022.

1. I am therefore satisfied beyond reasonable doubt that in sending the email dated 9 April 2022, Mr Kelly failed to comply with the requirements of s 71 of the Supreme Court Act. The next issue is whether Mr Kelly's failure to comply with the confidentiality requirements renders the contempt a civil contempt or a criminal contempt.

Is the failure to comply a civil or a criminal contempt?

1. Mr Kelly accepts that he committed a civil contempt in sending the email to Detective Sergeant Dowson.[171] Mr Kelly does not admit that he committed a criminal contempt.
2. The parties differ as to whether a failure to comply with the statutory obligation of confidence regarding mediation conferences constitutes a criminal or civil contempt. Both parties rely on the decision of Witham v Holloway[172] in support of their submissions.
3. The charge as drafted alleges that sending the email constitutes a criminal contempt on the basis that it is an interference with the administration of justice. This was also the basis on which the charge is put in Mr Hilton's written submissions.[173] Mr Hilton submits that court ordered mediations are an essential tool for facilitating the resolution of disputes in court, and that the statutory obligation of confidence attaching to mediations is intended to promote an open and protected environment for parties to communicate freely and frankly to attempt to resolve their disputes. In this regard Mr Hilton refers to the decision of Kenneth Martin J in C v M.[174]
4. Mr Hilton submits that a breach of the statutory obligation of confidentiality attaching to mediation conferences has the tendency to interfere with the due administration of justice in both the particular case, and more generally, by undermining the mediation process, and therefore constitutes a criminal contempt. Mr Hilton submits that this is the case because the purpose of proceedings in respect of such a contempt is maintaining the integrity of the judicial process, rather than being remedial or coercive in the interests of the private individual. Mr Hilton submits that this is consistent with the decision of the High Court in Witham v Holloway.[175]
5. Mr Kelly submits that, in accordance with the decisions of the High Court in Witham v Holloway and Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd,[176] a failure to comply with an order or rule of the court is better characterised as disobedience to the process and orders of the court, and therefore constitutes a civil contempt, unless the failure was contumacious.
6. In Witham v Holloway,[177] the plurality held that a civil contempt involves disobedience of a court order or breach of an undertaking in civil proceedings. A criminal contempt will occur when there is a contempt in the face of the court or there is an interference with the course of justice.
7. Likewise, in Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd,[178] the plurality held that:

Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt" ... (emphasis added)

1. That is, the authorities draw a distinction between a failure to comply with court orders, and other acts which involve an interference with the administration of justice (eg. interference with witnesses, improper pressure on a party).
2. I was not referred to any authorities which have directly addressed the nature of a contempt involving a failure to comply with the confidentiality requirements applicable to mediation conferences, save for the decision of Kenneth Martin J in C v M where, by way of obiter, Kenneth Martin J said that unilateral disclosure of information from a mediation conference was:[179]

... a violation of an indispensible [sic] protective component of the court's processes. It would also likely be a contempt of court, as I would see it, although argument was not heard on that point and the plaintiff does not press for any ruling or sanction in that respect.

1. Charge 16 concerns the failure by Mr Kelly to comply with the confidentiality requirements of s 71 of the Supreme Court Act in civil proceedings. In this regard, I consider a failure to comply with s 71 is more akin to a failure to comply with an order of the court or an undertaking.
2. That is not to say that the failure to comply with the requirements of s 71 (or of any court order) is not a serious matter, which may have consequences for the proper administration of justice in any one case. The importance of the confidentiality requirements (and compliance with them) was detailed by Kenneth Martin J in C v M:[180]

The statutory obligation of confidentiality attaching to mediations by direction is intended to promote an open, protected environment for parties to frankly and freely attempt to reach the resolution of their civil disputes, if they possibly can. That event frequently and overwhelmingly occurs, but not always so. But irrespective of a settlement or not, the protection of confidentiality over what passes back and forth in a mediation will remain. ...

1. These are matters which may be relevant to penalty or a purge application.
2. However, to the extent that it is necessary to characterise the type of contempt, I am of the view that a failure to comply with s 71 of the Supreme Court Act is more appropriately classified as a type of civil contempt concerned with the disobedience or failure to follow the processes and orders of the court, as opposed to an interference with the administration of justice and therefore a criminal contempt.
3. I am therefore satisfied beyond reasonable doubt that in sending the email dated 9 April 2022, Mr Kelly committed a civil contempt.

1. Charges 17 - 19 concern the communications sent by Mr Kelly to ASIC, the ASX and the Western Australian Police. The charges are further or in the alternative to charges 2, 3, 4, 6, 11, 12, 13, 15 and 16 above.
2. Charges 17 - 19 allege that Mr Kelly is guilty of a criminal contempt by interfering with the administration of justice by reason of his conduct in making disclosures to ASIC, the ASX and the Western Australian Police for the purpose of seeking to instigate these regulatory authorities to take adverse action against Mr Hilton (including to prosecute him) as retribution for Mr Hilton's defence of the substantive proceedings.
3. The text of the various messages to the regulatory authorities and Mr Kelly's explanation for sending the messages is set out earlier in these reasons.

1. It is not in dispute that threatening a party, or putting improper pressure on a party, or engaging in intimidatory or retributive conduct directed against a party can constitute a criminal contempt. It is a form of interference with the administration of justice.[181]
2. In Re Coroner's Court of Western Australia; Ex parte Porteous,[182] Wheeler JA (Wallwork J agreeing) held that contempt by way of interference with the administration of justice is conduct which:

(a) possesses a real risk, as opposed to a remote possibility, that justice will be interfered with;

(b) has a real and definite tendency to prejudice or embarrass pending proceedings; or

(c) has a clear tendency to prejudice the due administration of justice.

1. It is not necessary for the contemnor to have an intention to interfere with the due administration of justice, although a finding of such an intention will usually be sufficient to sustain a charge of contempt.[183] It is also not necessary for there to be successful interference with the administration of justice.[184]
2. The authorities identify a number of different ways in which a contempt involving interference with parties may occur. For example, in situations where there is a publication to the public, or a section of the public, which is calculated to or has a real tendency to deter a party from continuing with the proceedings or to put improper pressure on a party to settle. See for example Harkianakis v Skalkos,[185] where articles were published in two newspapers that were offensively critical of a party's instigation and maintenance of proceedings. See also Resolute Ltd & Anor v Warnes.[186]
3. However, in the present case the allegation is that Mr Kelly's conduct was in retribution for Mr Hilton defending the proceedings. Whilst some of the authorities to which I have been referred, and parts of Mr Kelly's submissions, refer to conduct which is intended to threaten or intimidate a party, that is not what is alleged in charges 17 ‑ 19.
4. I have not been referred to any authorities where the allegation is that the reporting of the party to regulatory authorities for the purposes of an investigation into possible criminal conduct (and/or possible prosecution) constitutes criminal contempt of the type alleged. The following authorities are those which are most similar or relevant to the present charges.
5. R v Silverstein[187] concerned an application for leave to appeal from a decision in the Magistrate's Court dismissing a motion seeking orders that the respondent be found guilty of seven charges of contempt. The Magistrate's Court proceedings were concerned with a debt recovery action in the context of complex background facts. The relevant charge of contempt alleged that the respondent filed an irrelevant affidavit and provided that affidavit to the applicant's former bankruptcy trustee for the purpose of intimidating the appellant in the conduct of the debt recovery proceedings, or seeking retribution from the appellant for maintaining the proceedings.[188] The appeal was dismissed. Addressing the legal requirements of intimidatory or retributive conduct directed to parties, the court held that the critical question in each case is whether the conduct was intended to intimidate, or seek retribution from the party, or whether it had a real tendency to have that effect.[189]
6. Another authority to which I have been referred concerns an allegation of threatening a party with criminal proceedings. In Brambles Holdings Ltd v Trade Practices Commission,[190] the Trade Practices Commission had commenced proceedings against Brambles Holdings. Those proceedings were defended. Whilst those proceedings were on foot, the Commission issued Brambles Holdings with a notice under the then existing legislative scheme which purported to require Brambles Holdings to provide documents and answer questions clearly relevant to the main proceedings. The notice also drew Brambles Holdings' attention to the relevant statutory provisions which provided that a failure to comply with the notice was an offence with a penalty consisting of a fine of $1,000 or imprisonment for three months.
7. Franki J held that under the statutory scheme such a notice could not be issued to a respondent in proceedings once they were commenced. Franki J held that issuing the notice in these circumstances:[191]

... was a clear interference with the ordinary course of justice. It was a clear attempt to procure an advantage by threatening a party with criminal proceedings if it did not do something which the law did not require it to do.

1. In a similar manner, in Smith v Lakeman the plaintiff was convicted of contempt of court for writing a letter to the defendant threatening him with being indicted 'for swindling, perjury, and forgery' if the matter were to proceed to judgment. Stuart VC held that:[192]

... the letter in question upon the motion ... was a threat for the purpose of intimidating him as a suitor, and, therefore, whether it had had that effect or not, it was unquestionably a contempt of court.

1. In Clarkson v The Mandarin Club,[193] Burchett J found the respondent liable for contempt of court on the basis that it suspended the applicant's membership of the respondent club out of a desire and intention to exact reprisal against him for successfully bringing a proceeding against the respondent.
2. In Re Samuel Goldman, the respondent (a lay person) was convicted of contempt of court for his rude and offensive comments to counsel for another party in the elevator after a court hearing, where the respondent was commenting on the steps taken by counsel in that court hearing. The NSW Court of Appeal held that:[194]

Contempt may be committed by intimidatory or punitive conduct directed against parties to litigation, counsel or solicitors who appear therein, or witnesses.

1. The effect of the above is that conduct will constitute an interference with the administration of justice if it is intended to seek retribution from a party for defending the substantive proceedings, or if it has a real tendency to have that effect.

Did Mr Kelly interfere with the administration of justice?

1. I am required to be satisfied beyond reasonable doubt that Mr Kelly's communications with the regulatory authorities were done with the intention of seeking to persuade the authorities to take adverse action against Mr Hilton as retribution for Mr Hilton's defence of the substantive proceedings, or the communications had a real tendency to have that effect. I am not satisfied of this beyond reasonable doubt for the following reasons.
2. I am satisfied beyond reasonable doubt that Mr Kelly communicated with the regulatory authorities for the purposes of continuing to bring to their attention information concerning his complaints regarding the conduct of Mr Hilton and Riversgold. I am also satisfied that Mr Kelly was seeking to have the regulatory authorities investigate and take some form of action against Riversgold and Mr Hilton. Possible action included preventing Riversgold from making further misleading statements and prosecuting Riversgold or Mr Hilton. This conclusion is consistent with the text of the communications and Mr Hilton's evidence.[195]
3. The question is whether this conduct was in retribution for Mr Hilton defending the proceedings.
4. Mr Kelly submits that, on the facts, the present charges sit outside any of the recognised categories of criminal contempt where improper pressure is placed on a party. In the present case, there is no allegation and no evidence that Mr Kelly contacted Mr Hilton or made any threat or directed any conduct towards Mr Hilton himself. Rather, the charges arise solely from private and confidential communications with the regulatory authorities which were not directed to Mr Hilton or intended to come to his attention.
5. Mr Kelly places significant emphasis on the fact that he had commenced communications with the regulatory authorities prior to commencing the substantive proceedings. Mr Kelly submits that there is no basis to link Mr Kelly's continuing communications after the substantive proceedings had commenced with the filing of the writ or Mr Hilton's defence to sustain the allegation that the communications were retribution for Mr Hilton's defence of the substantive proceedings.
6. In response, Mr Hilton submits that this does not affect the charges, as Mr Kelly commenced the substantive proceedings after being unable to convince the regulatory authorities to take any action against Mr Hilton. Mr Hilton submits that Mr Kelly sought to use the documents and information obtained to convince the regulatory authorities to prosecute Mr Hilton. Mr Kelly would not have had cause to do so but for Mr Hilton's continued defence of the substantive proceedings.
7. I consider that it is relevant in this case that Mr Kelly had commenced these communications with the regulatory authorities prior to commencing the substantive proceedings. Mr Kelly's evidence (which is supported by the text of his communications with the regulatory authorities) is that he held concerns about the conduct of Mr Hilton and Riversgold for some time. Therefore, this is not a case where the communications, and the seeking of some form of prosecution or action against Mr Hilton, arose only after Mr Hilton decided to the defend the substantive proceedings. In these circumstances, it is difficult to see how Mr Kelly's communications could have been sent with the intention of seeking retribution for Mr Hilton defending the proceedings or it could be said that the communications had a real tendency to have that effect.
8. In response, Mr Hilton submits that despite Mr Kelly's initial communications with the regulatory authorities (prior to commencing the substantive proceedings) no agency had taken any action against Riversgold or Mr Hilton. Further, on 8 June 2021 ASX informed Mr Kelly that they were satisfied that Riversgold was not in breach of the listing rules.[196]
9. I do not accept that the only available inference that arises from these facts is that the communications the subject of the charges were for the purpose of seeking retribution against Mr Hilton, or had a real tendency to have that effect. The evidence before the court is that Mr Kelly understood that if he obtained any further information or evidence he should provide it. I accept this part of Mr Kelly's evidence, notwithstanding my findings as to his credit, as it is supported by the contemporaneous running sheets of Detective Sergeant Dowson, in particular the note on 27 October 2021 that he advised Mr Kelly:[197]

... if his lawyers get to a point in their case preparation where they believe they have evidence to support and believe that can meet or exceed the reasonable doubt threshold, FCS will we [sic] reassess.

1. It is also consistent with the letter from the ASX on 8 June 2021 that if Mr Kelly continued to have concerns about the conduct of Riversgold or its directors, that he should notify ASIC.[198]
2. Further, I do not consider it to be necessarily unusual or unreasonable for a person who has made complaints to regulatory authorities, where no action has been taken, to write again to the regulatory authorities seeking either to have them change their position or conduct a further investigation, or to provide the authorities with additional information and documents in support of such a request.[199]
3. Another available inference is that Mr Kelly was continuing communications with the regulatory authorities he commenced prior to the substantive proceedings, and was providing additional information he had obtained since the last communications, as he understood he should do.
4. Mr Hilton also submits that Mr Kelly sought to have the regulatory authorities take action against Mr Hilton in retribution against Mr Hilton for defending the substantive proceedings as Mr Kelly was frustrated with the progress of the substantive litigation. Mr Hilton places reliance on the fact that by the time of these communications, Mr Kelly had spent $300,000 in legal costs on the substantive proceedings; the proceedings were only at the point of discovery; and Mr Kelly was frustrated with the progress of the substantive proceedings. Accordingly, Mr Hilton submits that Mr Kelly writing to the regulatory authorities, after they had declined to take any action in the past, was part of Mr Kelly seeking retribution against Mr Hilton for continuing with his defence of the substantive proceedings.
5. I do not accept that the only available inference that arises from these facts is that Mr Kelly was frustrated with the progress of the substantive litigation. There is no evidence before the court either in terms of contemporaneous documents or by way of affidavit evidence or cross-examination that Mr Kelly was frustrated with the progress of the substantive proceedings. Mr Kelly's communications refer to the amount he had spent on legal costs, but also refer to positive matters (from his perspective) including defeating a summary judgment application and the positive significance of the MME Letter and the Draft Terms Sheet on his case. Another available inference is that Mr Kelly was frustrated that no action had been taken against Mr Hilton and that Riversgold was still (in his view) continuing to mislead the market and for this reason he wrote to the regulatory authorities.
6. It is also unclear that writing to a regulatory authority is, itself, an interference with the administration of justice. I have not been referred to any authority to the effect that making a complaint to a regulatory authority about a party whilst proceedings are on foot amounts to an interference with the administration of justice of the type alleged. If, for example, evidence of possible criminal conduct arises in the course of proceedings, it is not clear why it is necessarily improper for that matter to be referred to the attention of the relevant authorities, provided that the Harman undertaking is complied with. Courts have, in appropriate circumstances, released a party from the Harman undertaking to permit documents or evidence to be provided to the police for the purposes of an investigation into possible criminal conduct. See, for example, North East Equity Pty Ltd v Goldenwest Equities Pty Ltd;[200] Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd[201] and Ashby v Slipper (No 2).[202] That the release is sought for the purposes of a criminal investigation, whilst not determinative of the exercise of the court's discretion, has been held to be a relevant public interest factor to be weighed in favour of release.[203]
7. For completeness, Mr Kelly places significance on the fact that the communications were sent only to the regulatory authorities, and not to Mr Hilton. Mr Kelly submits that this places the facts of this case outside the other cases involving interference with parties, as in those other cases the communications have been directed to the party, or have been published so that the party has seen them.
8. I accept that this difference may be relevant in cases where the allegation is that the contemnor has threatened or intimidated a party or has placed improper pressure on a party. However, in a situation where the allegation is that the conduct of the contemnor is for the purpose of seeking retribution against a party, I do not consider the fact that the party was not aware of the conduct at the time necessarily precludes a finding that the contemnor acted with the intention of seeking retribution, or the conduct had a real tendency to have that effect. It is not clear to me why the retribution must always be known by the party at the time in order for there to be an interference in the administration of justice sufficient to ground a contempt of court.
9. Accordingly, whilst the messages do constitute a breach of the Harman undertaking, that is not sufficient to constitute a contempt on the basis of an interference with the administration of justice of the type alleged in charges 17 - 19. In all the circumstances, I am not satisfied beyond reasonable doubt that Mr Kelly has engaged in the contempt alleged in charges 17 - 19.

1. Charges 20 and 21 concern the communications sent by Mr Kelly to Mr Pheng and Mr Klopper. These charges are further or in the alternative to charges 7, 8, 9 and 10.
2. Charges 20 and 21 allege that Mr Kelly is guilty of a criminal contempt by reason of his conduct in interfering with the administration of justice by sending the messages to Mr Pheng and Mr Klopper, who Mr Kelly knew to be potential witnesses in the substantive proceedings, and which messages were intended or calculated to discourage or dissuade Mr Pheng and Mr Klopper from giving evidence in the substantive proceedings.

1. It is not in dispute that interference with a potential witness by threat, intimidation or other means of influence in a manner calculated to deter the witness from giving evidence or to influence the witness in the evidence that they are to give constitutes a criminal contempt. It is a form of interference with the administration of justice.[204]
2. Whilst the authorities do not require that the alleged contemnor know that the person will be a witness, it is necessary for the alleged contemnor to have an appreciation that the person may be a potential witness, and must also intend to dissuade the potential witness from giving evidence, or from giving truthful evidence. That intention may be satisfied by reckless disregard of the likely effect of such a threat. [205]
3. In Farahbakht v Midas Australia Pty Ltd, Brereton J (as his Honour then was) outlined a range of conduct which would, or would not, amount to contempt involving an attempt to influence a witness:[206]
   1. Was the conversation an attempted interference with the witness in the relevant sense? Much of it is capable of innocent explanation. It is not a contempt to ring or approach or speak to a potential witness to ascertain what the witness is going to say, if called. There is no contempt involved in asking, "Are you going to court to testify against me?" Nor in my view is there necessarily any contempt involved in asking, "Are you going to go in there and say that you don't know nothing or are you going to tell them what happened?", at least unless accompanied by a suggestion, express or implicit, that the witness should do the former; such an inquiry simply seeks to elucidate what the witness is going to say and, in particular, whether the witness is going to tell what the enquirer, in the circumstances, fears will be disclosed if the truth is told, but might not be disclosed if nothing is said.
   2. But it is when he goes on to say, "If you do say something, it is going to hurt me and my family" that in my view the line was definitely crossed. The statement, "If you do say something, it is going to hurt me and my family" can only have had as its purpose the raising of some, albeit perhaps slight, pressure, influence or encouragement not to tell the whole truth. At the very least, it was calculated to have that effect.
   3. It is fundamental to the administration of justice that the willingness of witnesses to tell courts the truth be absolutely uninfluenced. The cases to which I have already referred show that the absence of a threat is irrelevant. Indeed, the administration of justice is prejudiced at least as much by the deterring or influencing of a witness from frankly telling the truth by affection, loyalty or concern about the impact of his or her evidence on a party, as by threats or bribery. In this case, by uttering those words, Mr Farahbakht gave a reason for Mr Norman either to decline to give evidence, or to give evidence in a way which would not hurt Mr Farahbakht and his family. In my view, that is a sufficient interference to constitute a contempt.
4. It is also relevant to observe that there is 'no property in a witness' and therefore merely contacting a witness (or a potential witness), even if that witness may be in the 'camp' of the other party, is not prohibited. Accordingly, interference with a witness may extend to interference with proper and reasonable attempts by a party's legal advisers to identify and interview potential witnesses.[207]

Content of the messages and Mr Kelly's knowledge of who would be potential witnesses

1. The text of the various messages to Mr Pheng and Mr Klopper and Mr Kelly's explanation for sending the messages are set out earlier in these reasons.
2. Mr Kelly was cross-examined on whether he thought that Mr Pheng and Mr Klopper might be witnesses in the substantive proceedings:[208]

You thought that Mr Pheng and Mr Klopper might both be witnesses in these proceedings, didn't you?---I didn't - didn't think that, no.

Well, why were you asking Mr Klopper for information?---Because he was one of the people that provided the information during the IBO [sic] process in 2017.

But isn't that what your case involves, what happened in 2017?---Yes.

In the IBO? [sic]---Yes.

He was one of the people involved?---Yes.

So on your reasoning, you would expect him to be one of the potential witnesses, wouldn't you?

...

Did you think Mr Klopper might be a witness in these proceedings?---I didn't know. It - possibly.

1. Mr Kelly was also cross-examined about the stage of the substantive proceedings as at July 2022:[209]

As at July 2022, these proceedings had reached the discovery stage, pretty much, hadn't they?---Yes, that's right.

And in fact you hadn't received all of the documents yet?---So I received the documents in July of 2022. Is that what you're asking?

Yes?---Yes.

And you were a long way away from trial?---I don't know the answer to that question.

Did Mr Kelly interfere with the administration of justice?

1. I am required to be satisfied beyond reasonable doubt that the text messages were sent by Mr Kelly to discourage or dissuade Mr Pheng and Mr Klopper from giving evidence in the substantive proceedings, or that the messages had a real tendency to do so. I am not so satisfied for the following reasons.
2. As a starting point, I am satisfied beyond reasonable doubt that Mr Kelly knew that Mr Pheng and Mr Klopper may be potential witnesses. It is not necessary for Mr Kelly to know that Mr Pheng and Mr Klopper would actually be witnesses. As submitted by Mr Kelly, the substantive proceedings were not yet at a point where witness outlines had been exchanged or witnesses otherwise identified. However, each had a role in the factual events underpinning the substantive proceedings, as evidenced by Mr Kelly contacting each individual. Further, Mr Kelly included Mr Klopper in his email to the ASX on 21 October 2022 and alleged that he was a co-conspirator in the matters the subject of Mr Kelly's complaints. I do not consider it is necessary for Mr Kelly to also know for which party the potential witness may give evidence. In these circumstances, I do not accept Mr Kelly's evidence that he did not think that each might be a potential witness.
3. However, it is not sufficient for the individual to be a potential witness. There is no property in a witness (or a potential witness), and it is not contempt to simply speak to or contact a witness (or potential witness).
4. I have found, for the reasons outlined earlier in these reasons, that Mr Kelly sent the messages to Mr Pheng and Mr Klopper because he was generally angry and frustrated with Mr Hilton for his alleged behaviour and with Mr Pheng and Mr Klopper for their possible involvement. I have also found that Mr Kelly's motivation in sending the communications was, partly, to seek vindication for his allegations. I have found that the messages were not sent for the purposes of obtaining information, but rather read as someone boasting that they now know the true position.
5. However, I do not consider there is anything in the text of the messages themselves which can be described as threatening or intimidatory. The text of the messages does not refer to the substantive legal proceedings; suggest that Mr Pheng or Mr Klopper should or should not give evidence; suggest that Mr Pheng or Mr Klopper should not give truthful evidence; suggest what their evidence should or should not be; make any promises or inducements; or suggest any reprisals if Mr Pheng or Mr Klopper give evidence. There is also nothing in the text of Mr Kelly's other messages with Mr Pheng that suggest any of the above, even allowing for Mr Kelly describing Mr Pheng inappropriately. The text messages read as someone boasting (perhaps foolishly or prematurely) that he is right, and not as someone trying to intimidate or influence a potential witness.
6. The text messages do constitute a breach of the Harman undertaking. However, that is not sufficient to constitute a contempt on the basis of an interference with the administration of justice of the type alleged in charges 20 and 21. In all the circumstances I am not satisfied beyond reasonable doubt that, in addition, the messages cross the line from what is acceptable to what is unacceptable. I am not satisfied beyond reasonable doubt that the messages were intended by Mr Kelly to discourage or dissuade Mr Pheng and Mr Klopper from giving evidence in the substantive proceedings, or that the messages had a real tendency to do so.
7. In these circumstances, I am not satisfied beyond reasonable doubt that Mr Kelly has engaged in the contempt alleged in charges 20 and 21.

Has Mr Kelly committed any of the remaining instances of contempt concerning a breach of the Harman undertaking referred to in the Purge application? Purge items 6A, 6C, 6D and 6F

1. Items 6A, 6C, 6D and 6F all concern communications between Mr Kelly and officers of the Western Australian Police.
2. The communication the subject of item 6A concerns an email sent by Mr Kelly to the Western Australian Police on 21 February 2021 in which Mr Kelly provided the officers with Mr Hilton's defence in the substantive proceedings.[210]
3. The communication the subject of item 6C concerns an email sent by Mr Kelly to the Western Australian Police on 15 December 2021 in which Mr Kelly used information from the defence and the MME Letter.[211]
4. The communication the subject of item 6D concerns an email sent by Mr Kelly to the Western Australian Police on 3 April 2022 in which Mr Kelly refers to attending a court ordered mediation session. Mr Kelly also used information derived from the MME Letter in this email.[212]
5. The communication the subject of item 6F concerns an email sent by Mr Kelly to the Western Australian Police on 17 October 2022 which attaches an email sent on 16 October 2022 in which Mr Kelly provides an update on proceedings and refers to the MME Letter and the Draft Terms Sheet.[213]
6. These items do not overlap with the Committal motion, and Mr Hilton does not seek to be heard on whether any of these items constitute a breach of the Harman undertaking and therefore a contempt.
7. As these matters are not the subject of the Committal motion, there is no allegation that any breaches are contumacious or that there has been an interference with the administration of justice, and no process of the court has been commenced alleging any criminal contempt on Mr Kelly's part. I am therefore only considering whether any of these items constitute a breach of the Harman undertaking and a civil contempt.
8. Mr Kelly admits that he breached the Harman undertaking by sending the communications to the Western Australian Police which are the subject of items 6A, 6C, 6D and 6F of the Purge application. Mr Kelly further accepts that each of these communications constitutes a civil contempt.[214]
9. In relation to item 6A, I am satisfied that at the time of the communication, Mr Hilton's defence is a document to which the Harman undertaking applies. In some instances, pleadings have been held not to fall within the scope of the Harman undertaking on the basis that pleadings are documents which are available for inspection by members of the public subject to orders to the contrary.[215] However, in the present case Mr Hilton's defence is not a document to which a member of the public has an automatic right to access without first obtaining the permission of the Court (see O 67B r 6(3) and O 67B r 6(4)(a) of the RSC). Accordingly, in the present case I am satisfied that the defence is a document to which the Harman undertaking applies. I am also satisfied beyond reasonable doubt that:

(a) Mr Hilton filed and served his defence in the course of the substantive proceedings. Mr Hilton was required to file and serve a defence in accordance with the RSC;

(b) Mr Kelly was aware that the defence was obtained in the substantive legal proceedings;

(c) Mr Kelly made the communication referred to in item 6A of the Purge application;

(d) In making that communication, Mr Kelly provided the Western Australian Police with the defence; and

(e) Mr Kelly did not have the leave of the court to provide the defence to Western Australian Police and/or had not obtained a discharge from his obligations under the Harman undertaking from the court.

1. The fact that Mr Kelly was not aware of the Harman undertaking at the time he sent the defence to the Western Australian Police[216] does not mean that a breach of the Harman undertaking has not occurred, although this fact may be relevant to the question of whether the contempt has been purged or (if relevant) in relation to any appropriate penalty.[217]
2. In relation to items 6C, 6D (in so far as each used information derived from the MME Letter) and 6F, I am satisfied beyond reasonable doubt that:

(a) Mr Hilton provided the documents particularised in each item to Mr Kelly in the course of the substantive proceedings. Mr Hilton was compelled to provide these documents pursuant to O 26 r 8(2) RSC and/or the order for discovery made by Strk J on 6 April 2022.

(b) Mr Kelly was aware that these documents were obtained in the substantive legal proceedings;

(c) Mr Kelly made each of the communications referred to in items 6C, 6D and 6F of the Purge application;

(d) In making those communications, Mr Kelly provided the Western Australian Police with the particularised documents, or information derived from the particularised documents; and

(e) Mr Kelly did not have the leave of the court to provide the particularised documents or information to the third parties and/or had not obtained a discharge from his obligations under the Harman undertaking from the court.

1. I am therefore satisfied beyond reasonable doubt that Mr Kelly committed a civil contempt in relation to the communications contained in items 6C, 6D (in so far as it used information derived from the MME Letter) and 6F.
2. Item 6D also makes reference to the court ordered mediation conference. I have set out above in relation to charge 16 of the Committal motion the law in relation to confidentiality surrounding court ordered mediation conferences. Item 6D makes the following reference to the mediation conference:

We had a court ordered mediation session a few weeks ago.

It was a pointless exercise as Hilton's solicitor didn't even show up, and Bennett was instructing their Barrister from behind the scenes.

1. The text of item 6D is at a very high level of generality. It does not refer specifically to anything said or done; or any particular communication; or any admission made in the mediation conference. Item 6D is of a different level of specificity than the email the subject of charge 16 of the Committal motion. Given its text, I am not satisfied beyond reasonable doubt that item 6D constitutes a breach of the confidentiality requirements for mediation conferences under Part VI of the Supreme Court Act. I therefore do not find that Mr Kelly breached the confidentiality requirements in Part VI of the Supreme Court Act in relation to item 6D.

Purge items 9, 10, 11, 13, 15, 17, 18, 19, 20, 21 and 22

1. Items 9, 10, 11, 13, 15, 17, 18, 19, 20, 21 and 22 each concern communications between Mr Kelly and third parties. Mr Kelly does not admit that these communications constitute a breach of the Harman undertaking but has included each of these communications in the Purge application out of an abundance of caution. The details of these additional items are contained in Schedule 2 to these reasons.
2. Again, these items do not overlap with the Committal motion, and Mr Hilton does not seek to be heard on whether any of these items constitute a breach of the Harman undertaking and therefore a contempt.
3. As these matters are not the subject of the Committal motion, there is no allegation that any breaches are contumacious, and no process of the court has been commenced alleging any criminal contempt on Mr Kelly's part. I am therefore only considering whether any of these items constitutes a breach of the Harman undertaking and a civil contempt.
4. In relation to each of these items, except items 18 and 22, I am satisfied beyond reasonable doubt, that:

(a) Mr Hilton provided the documents particularised in each item to Mr Kelly in the course of the substantive proceedings. Mr Hilton was compelled to provide these documents pursuant to O 26 r 8(2) RSC and/or the order for discovery made by Strk J on 6 April 2022.

(b) Mr Kelly was aware that these documents were obtained in the substantive legal proceedings;

(c) Mr Kelly made each of the communications to the third parties referred to in items 9, 10, 11, 13, 15, 17, 19, 20 and 21 of the Purge application;

(d) In making those communications, Mr Kelly provided the third parties with the particularised documents, or information derived from the particularised documents; and

(e) Mr Kelly did not have the leave of the court to provide the particularised documents or information to the third parties and/or had not obtained a discharge from his obligations under the Harman undertaking from the court.

1. The issue raised by these items is the purpose for which the communication the subject of each charge was made. Mr Kelly submits that each communication was made for a purpose of obtaining information that was relevant to, or which could be used in, Mr Kelly's case in the substantive proceedings. This included information about the MME Letter and the Draft Terms Sheet. It is therefore necessary to consider each communication and determine the purpose of each.

1. Item 9 consists of two emails sent from Mr Kelly to Mr Denora Sarin on 30 August 2022.
2. Mr Sarin is a lawyer in Cambodia. His Cambodian law firm, together with another law firm, produced an independent report for Riversgold about the Cambodian gold tenements.[218] This report is referred to in Mr Hilton's defence.[219]
3. The first email sent from Mr Kelly to Mr Sarin is written in the style of a formal letter, in which Mr Kelly introduces himself, explains his role in Riversgold and refers to the report prepared by Mr Sarin's law firm. The email notes that this report was based on the 'Reviewed Documents' provided by Mr Hilton. The email goes on to explain that Mr Kelly has commenced an action against Mr Hilton in this court and explains the issues from Mr Kelly's perspective, including his belief that Mr Hilton withheld information. The email attaches a number of documents, including the MME Letter, and at least one other discovered document, then says the following:[220]

1. The second email is sent approximately 10 minutes later. It refers to Mr Kelly's previous email and attaches some further documents.[221] Mr Sarin did not respond to these emails.
2. Mr Kelly's affidavit evidence is that he considered the new documents and information he had become aware of in the substantive proceedings may have had an impact on Mr Sarin's report. Mr Kelly deposes that he sent the emails to Mr Sarin to get information about the new documents and information sent in the emails, and Mr Kelly hoped that Mr Sarin might acknowledge that if he had these additional documents at the time, his report may have been different.[222] Mr Kelly was not cross-examined on this evidence.
3. I am not satisfied beyond reasonable doubt that these emails were not sent for the purposes of the substantive proceedings. The emails are written in a formal style to the author of a report which is relied upon in Mr Hilton's defence. Whilst there is not a detailed list of questions, the email attaches additional documents and asks Mr Sarin to comment on these documents. This request must be read in the context of the whole of the email, and bearing in mind that Mr Kelly is not a lawyer. The email sets out Mr Kelly's concern that Mr Hilton had withheld information and documents, and identifies those document and information. In these circumstances, I am satisfied that in asking Mr Sarin to comment on these additional documents Mr Kelly was asking Mr Sarin to comment on not only the documents, but what effect (if any) the documents had on his report.
4. In these circumstances, I am not satisfied beyond reasonable doubt that these emails were not sent for the purposes of the substantive proceedings. I therefore do not find a breach of the Harman undertaking in relation to item 9.

1. Items 10, 11, 13 and 15 consist of further communications between Mr Kelly and Mr Moir.
2. Item 10 is an email from Mr Kelly to Mr Moir dated 8 October 2021. In that email Mr Kelly provides Mr Moir with a copy of the MME Letter in Khmer and requests that Mr Moir obtain a translation into English of the letter.[223]
3. Item 11 is an email from Mr Kelly to Mr Moir dated 14 August 2022, which forms part of a chain of emails between 13 August 2022 and 17 August 2022. In those emails Mr Kelly provides Mr Moir with two documents from the Ministry of Mines and Energy which were provided by way of discovery from Mr Hilton. Mr Kelly requests Mr Moir to assist him with obtaining a translation of the documents and there is then a further discussion in the emails as to the content of the documents in the context of Mr Kelly's litigation.[224]
4. Item 13 consists of emails from Mr Kelly to Mr Moir dated 25 September 2022 regarding a document described in the subject line as a receipt. Mr Kelly asks Mr Moir if he has any idea what the document is, and Mr Moir provided his view and offers to get the document translated and attaches a rough translation.[225] The document the subject of the emails was a document discovered by Mr Hilton.
5. Item 15 consists of a chain of emails from Mr Kelly to Mr Moir in November 2022.[226] In the emails dated 5 and 6 November 2022, Mr Kelly asks Mr Moir if he has (or can obtain) a translation of a licence (and refers back to an earlier email regarding a translation of a licence from July 2020). On 8 November 2022, Mr Moir sent Mr Kelly an email providing Mr Kelly with a 'heads up' about conversations in Cambodia about the Cambodian mining tenements he had been told about. Mr Kelly and Mr Moir then exchange further emails on 8 November 2022 on this topic. In one email dated 8 November 2022, Mr Kelly refers to the Draft Terms Sheet as part of these general discussions. Between 23 November and 25 November 2022, Mr Kelly and Mr Moir exchange emails about Mr Moir's meetings with several senior officials in the Ministry of Mines and Energy, and what Mr Moir says he was told by those officials about the Cambodian gold tenements and whether anything was ever issued to Riversgold. Mr Moir sent an email to Mr Kelly on 25 November 2022 asking him how his case is going, and in the course of Mr Kelly's response, he refers to the Draft Terms Sheet.
6. I am not satisfied beyond reasonable doubt that items 10, 11, 13 and 15 were not sent for the purposes of the substantive proceedings. The emails form part of a broader exchange of communications between Mr Kelly and Mr Moir in which Mr Kelly seeks Mr Moir's assistance in translating discovered documents and understanding not only their text, but what each means in the context of Mr Kelly's case in the litigation. The emails also include discussions about other matters occurring in Cambodia and how they are relevant to Mr Kelly's case. Whilst these emails are not written in a formal style, this is consistent with the long-standing nature of the relationship between Mr Kelly and Mr Moir. I also note that Mr Kelly is not a lawyer.
7. I am not satisfied beyond reasonable doubt that communications attaching discovered documents and requesting their translation and discussing their meaning are not for the purposes of the substantive litigation. I am also not satisfied beyond reasonable doubt that communications discussing other factual matters occurring in Cambodia, and how they are relevant to Mr Kelly's case are not for the purposes of the substantive proceedings. I therefore do not find a breach of the Harman undertaking in relation to items 10, 11, 13 and 15.

1. Items 17 and 18 are LinkedIn messages sent by Mr Kelly to Mr Morgan Hart dated 21 October 2021 and 10 February 2022.
2. Mr Hart is the Managing Director of Emerald Resources. In the statement of claim, Mr Kelly pleads that in 2016 and 2017 Mr Hilton claimed that Cambodia Gold had negotiated an exploration joint venture agreement with Emerald Resources over the mining tenements. In his first affidavit Mr Kelly deposes that on 19 October 2022, Emerald Resources issued an ASX announcement that they had entered into an agreement in relation to the mining tenements with a different company.
3. In his second affidavit Mr Kelly deposes that between 1 and 4 August 2021, he attended the 'Diggers and Dealers' conference held in Kalgoorlie. When at that conference, Mr Kelly deposes that he saw that Emerald Resources had a booth displaying a map with the new licences covering the same area as the tenements Mr Hilton claimed were held by Cambodia Gold. Mr Kelly and Mr Hart then had a discussion about this, including that Emerald Resources had a joint venture with a different company.[227]
4. Item 17 is a LinkedIn message sent by Mr Kelly to Mr Hart on 21 October 2021 (approximately two months after the 'Diggers and Dealers' conference). In that message Mr Kelly attaches a screenshot of the MME Letter accompanied by the following text:[228]

Just got this from Hilton! He has been sitting on it since April 2017!! Provides the antrong application was worthless ... and he knew it!

Morgan Hart

Certainly doesn't look like a licence.

Allan Kelly

Yep, he applies for Antrong on 2 March 2017 and got the letter from the MME on 4 April, then lied through the whole riversgold dd/ipo process...

1. Mr Kelly deposes that he sent Mr Hart the MME Letter because of their earlier conversation at the 'Diggers and Dealers' conference. Mr Kelly's evidence is that he wanted to see if Mr Hart shared his understanding of the meaning and intent of the MME Letter given Mr Hart's familiarity with Cambodia and the area in question.[229] Mr Kelly was not cross-examined on this evidence.
2. An exchange of LinkedIn messages then continues intermittently until February 2022. Those messages largely address whether Cambodian approval of the Emerald Resources joint venture has occurred and when public announcement of the joint venture will occur and whether the Emerald Resources joint venture ASX announcement assists Mr Kelly's case. Mr Kelly also provides a screenshot of a newspaper article regarding the substantive proceedings.
3. Item 18 consists of a LinkedIn message sent by Mr Kelly to Mr Hart on 10 February 2022 in which Mr Kelly says:[230]

Face to face with Hilton yesterday. He still thinks he has something.

1. Mr Hart responds, 'That's crazy'.
2. Item 18 was sent shortly after the mediation conference held on 9 February 2022. Mr Kelly deposes that he did not consider at the time that he was telling Mr Hart anything that was confidential, and it did not occur to Mr Kelly that he was doing anything wrong.[231]
3. I am not satisfied beyond reasonable doubt that item 17 was not sent for the purposes of the substantive proceedings. The LinkedIn messages form part of a broader exchange of electronic communications between Mr Kelly and Mr Hart regarding the role of Emerald Resources in developing the land the subject of the Cambodian gold tenements and the extent of any involvement of Emerald Resources with Cambodia Gold or Mr Hilton. These communications followed an earlier in-person discussion. In this context, I am not satisfied beyond reasonable doubt that discussing the MME Letter, and what it means in that broader context, is not for the purposes of the substantive proceedings.
4. In relation to item 18, I have set out above in relation to charge 16 of the Committal motion the law in relation to confidentiality surrounding court ordered mediation conferences. Item 18 in the Purge application makes reference to the mediation conference. However, the text of item 18 is at a very high level of generality. The message does not refer specifically to anything said or done; or any particular communication; or any admission made in the mediation conference. Item 18 is of a different level of specificity than the email the subject of charge 16 of the Committal motion. Given its text, I am not satisfied beyond reasonable doubt that item 18 constitutes a breach of the confidentiality requirements for mediation conferences under Part VI of the Supreme Court Act.
5. I therefore do not find that Mr Kelly breached the Harman undertaking in relation to item 17 or the confidentiality requirements in Part VI of the Supreme Court Act in relation to item 18.

1. Item 19 is an email from Mr Kelly to Brad Jones dated 18 August 2022.[232]
2. Mr Jones is an old friend of Mr Kelly who had worked with the ANZ bank for many years. Mr Jones also worked for other financial institutions in South East Asia, including in Cambodia.[233]
3. In the email Mr Kelly explains that he wants to get Mr Jones' thoughts on a letter. Mr Kelly indicates that he first needs to give Mr Jones some background and goes on to explain the factual background to the litigation from his perspective and explains that in the discovery process Mr Hilton has provided a letter sent by Cambodia Gold to the Ministry for Mines and Energy requesting a meeting. That letter mentions the ANZ.[234] Mr Kelly's email says that he will provide the original document in Khmer and a translated version (although they are not attached to this email and Mr Kelly cannot recall if they were ever provided)[235] and says that he is, 'interested in [his] thoughts.'.
4. On 21 August 2022, Mr Jones sent an email in response with his thoughts on Mr Kelly's email, including explaining that the ANZ operating in Cambodia at that time was a joint venture called ANZ Royal. Mr Jones offers to put Mr Kelly in contact with reputable people in Cambodia to assist in giving Mr Kelly facts but seeks clarification from Mr Kelly as to his objectives so he can provide more targeted advice.
5. I am not satisfied beyond reasonable doubt that this email was not sent for the purposes of the substantive proceedings. In the email Mr Kelly seeks assistance from Mr Jones in finding out information about the involvement of the ANZ (if any) in Cambodia Gold's claimed joint venture. Mr Jones is known to Mr Kelly and has experience with both the ANZ and in financial institutions in South East Asia. This information is relevant to a discovered document. I am not satisfied beyond reasonable doubt that this is a collateral purpose to the purposes of the substantive proceedings. I therefore do not find a breach of the Harman undertaking in relation to item 19.

1. Items 20 and 21 consist of two separate in person discussions between Mr Kelly and Marion Bush and Mr Kelly and Jennifer Rezos in or about July or August 2022. Ms Bush and Ms Rezos are colleagues of Mr Kelly who work with Mr Kelly at Miramar Resources Ltd.[236] Ms Bush is a board member of Miramar,[237] and Ms Rezos is a lawyer.[238]
2. Mr Kelly deposes that when he received the Draft Terms Sheet he struggled to understand what the document meant, and shortly after receiving it he showed a printed copy to Ms Bush and Ms Rezos for the purpose of confirming his understanding of what it meant. Mr Kelly showed the Draft Terms Sheet to Ms Bush at Miramar's offices, and Mr Kelly showed a copy to Ms Rezos at a café.[239] Mr Kelly was not cross-examined on his affidavit evidence.
3. There is no evidence before me as to why Mr Kelly chose to discuss the Draft Terms Sheet with Ms Bush and Ms Rezos in particular, and whether they had any particular skills and expertise in this area. However, given their occupations and place of work, I cannot exclude the inference that each may have experience in reading documents similar to the Draft Terms Sheet and therefore may have been able to assist Mr Kelly in understanding the document.
4. In these circumstances I am not satisfied beyond reasonable doubt that these two conversations were not for the purposes of the substantive litigation. Mr Kelly's evidence is that he asked Ms Bush and Ms Rezos for assistance in understanding the Draft Terms Sheet which is a discovered document. Both work for a mining company, one is a board member and the other a lawyer. I am not satisfied beyond reasonable doubt that this was not for the purposes of the substantive proceedings. I therefore do not find a breach of the Harman undertaking in relation to items 20 and 21.

1. Item 22 consists of various unparticularised discussions between Mr Kelly and friends, family, colleagues and a health professional. Mr Kelly deposes that he has spoken to various named individuals about the substantive proceedings for the purpose of seeking support and to unburden himself of the considerable strain involved.[240]
2. Mr Kelly deposes that he cannot now recall the specific occasions or dates on which he had these discussions, nor the details of exactly what he said to these individuals. However, Mr Kelly's evidence is that it is 'probable' that he raised with some or all of these individuals, in general terms, various documents obtained from Mr Hilton including the MME Letter and the Draft Terms Sheet.[241] Mr Kelly does not state that he provided any of the individuals with any of the documents. Mr Kelly was not cross-examined on this evidence.
3. It is understandable that litigation can be stressful and that those involved may need to talk to others in their life to assist in relieving that stress. However, when having these discussions regard must still be had to the Harman undertaking, and the need to have these discussions at a level of generality that ensures compliance with the undertaking.
4. In the present case, there is only limited evidence as to the content of the discussions falling within item 22. Mr Kelly is unable to recall not only the specific occasions or dates upon which he held these conversations, but also the details of exactly what he said to these individuals. Whilst Mr Kelly's evidence is that it is 'probable' that he referred to documents which were obtained under compulsion, absent specific dates and details of each conversation, including the precise documents or information discussed, I cannot be satisfied beyond reasonable doubt that a breach of the Harman undertaking has occurred, or on how many occasions.
5. I therefore do not find a breach of the Harman undertaking in relation to item 22.

1. I am satisfied beyond reasonable doubt that Mr Kelly:

(a) has committed criminal contempt in the form of contumacious breaches of Harman undertaking as alleged in charges 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 15 of the Committal motion;

(b) has committed civil contempt by sending an email which revealed communications between the Mr Hilton and Mr Kelly during a court ordered mediation conference as alleged in charge 16 of the Committal motion; and

(c) has committed civil contempt in the form of breaches of Harman undertaking as identified in items 6A, 6C, 6D and 6F of the Purge application.

1. I will hear further from the parties in relation to the appropriate orders to programme a further hearing to consider whether Mr Kelly has purged his contempt and/or an appropriate penalty.

* indicates the charges that are admitted by Mr Kelly to the civil standard.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 31 August 2021 at 7.04pm, in sending a message via LinkedIn to Richard Stanger which contained a photograph of a letter from the Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 17 October 2021 at 9.10am, in sending an email to Paul Dowson and Tony Vesperman of the Western Australian Police which attached a copy of and contained information derived from a letter from the Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 9 July 2022 at 2.56pm, in sending an email to Shannon Nicholson and Jessica Coupe of the Australian Stock Exchange attaching a letter from the first plaintiff to Ms Coupe dated 9 July 2022 which letter:

(a) contained information derived from the discovered documents; alternatively

(b) contained at page 3 information derived from the MME Letter,

which documents had been produced by the defendant under compulsion in these proceedings the disclosure of which information was a breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 18 July 2022 at 8.19am, in sending an email to Matthew Hynes of the Australian Securities and Investments Commission attaching a letter from the first plaintiff to Matthew Hynes dated 18 July 2022 which letter at page 3 contained information derived from a letter from the Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 25 September 2022 at 6.17pm, in sending an email to Graham Moir attaching copies of documents HIL.001.002.2869 and HIL.001.002.2870 which documents had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 26 September 2022 at 2.47pm, in sending an email to Shannon Nicholson and Jessica Coupe of the Australian Stock Exchange attaching a letter from the first plaintiff to Jessica Coupe dated 26 September 2022 which letter:

(a) contained information derived from the discovered documents; alternatively

(b) contained information:

1. at page 2 derived from HIL.001.002.0225, HIL.006.001.0560 and the MME Letter (HIL.010.001.0127); and
2. at pages 3-4 derived from HIL.001.002.2869 and HIL.001.002.2870,

which documents had been produced by the defendant under compulsion in these proceedings the disclosure of which information was a breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 16 October 2022 in sending a message via Skype to Heng Pheng at 5:01pm which contained a screenshot of a letter from the Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 16 October 2022 at 5:15pm in sending a message via Skype to Heng Pheng which contained a screenshot of HIL.001.002.2870 which document had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct in or around September 2022 in sending a text message to Jay Klopper which contained a screenshot of HIL.001.002.2870 which document had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct in or around September 2022 in sending a text message to Jay Klopper which contained a screenshot of a letter from the Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 which document had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 16 October 2022 at 9.41pm, in sending an email to Paul Dowson and Tony Vesperman of the Western Australian Police which email contained information derived from the MME Letter, HIL.001.002.2869 and HIL.001.002.2870 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 21 October 2022 at 6.09pm, in sending an email to Matthew Hynes and Ms Krystal Fung of the Australian Securities and Investments Commission referring to information derived from and attaching copies of documents HIL.001.002.2869 and HIL.001.002.2870 which documents had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 21 October 2022 at 2.59pm, in sending an email to James Rowe and Shannon Nicholson of the Australian Stock Exchange referring to information derived from documents HIL.001.002.2869 and HIL.001.002.2870 which documents had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 25 September 2022 at 4.51pm, in sending an email to Graham Moir referring to information derived from documents HIL.001.002.2869 and HIL.001.002.2870 which documents had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 21 October 2022 at 2:33pm, in sending an email to Paul Dowson and Tony Vesperman of the Western Australian Police which email attached copies of documents HIL.001.002.2869 and HIL.001.002.2870 which had been produced by the defendant under compulsion in these proceedings in breach of the first plaintiff's obligation to the Court not to use documents produced by the defendant under compulsion, in whole or in part, or the information contained in them, for any purpose not directly connected with the conduct of the proceedings.

The first plaintiff is guilty of a criminal contempt by reason of his conduct on 9 April 2022 at 11:01am in sending an email to Paul Dowson of the Western Australian Police which email disclosed details of communications between the first plaintiff and the defendant during the course of a Court ordered mediation between them on 9 February 2022, and thereby interfering with the administration of justice.

Further or alternatively to charges 4 and 12 above, the first plaintiff is guilty of a criminal contempt by reason of his conduct in making the disclosures to the Australian Securities and Investments Commission the subject of charges 4 and 12 above for the purpose of seeking to instigate the Australian Securities and Investments Commission, taking adverse action against the defendant as retribution for the defendant's defence of these proceedings.

Further or alternatively to charges 3, 6 and 13 above, the first plaintiff is guilty of a criminal contempt by reason of his conduct in making the disclosures to the Australian Stock Exchange the subject of charges 3, 6 and 13 above for the purpose of seeking to instigate the Australian Stock Exchange, taking adverse action against the defendant as retribution for the defendant's defence of these proceedings.

Further or alternatively to charges 2, 11, 15 and 16 above, the first plaintiff is guilty of a criminal contempt by reason of his conduct in making the disclosures to the Western Australian Police the subject of charges 2, 11, 15 and 16 above for the purpose of seeking to instigate the Western Australian Police taking adverse action against the defendant as retribution for the defendant's defence of these proceedings.

Further or alternatively to charges 9 and 10 above, the first plaintiff is guilty of a criminal contempt by reason of his conduct in interfering with the administration of justice by sending text messages to Jay Klopper in or around September 2022 who the first plaintiff knew to be a potential witness in this proceeding and which messages were intended or calculated to discourage or dissuade Mr Klopper from giving evidence in the proceeding.

Further or alternatively to charges 7 and 8 above, the first plaintiff is guilty of a criminal contempt by reason of his conduct in interfering with the administration of justice by sending Skype messages to Heng Pheng on 16 October 2022 and 21 October 2022 who the first plaintiff knew to be a potential witness in this proceeding and which messages were intended or calculated to discourage or dissuade Heng Pheng from giving evidence in the proceeding.

Email from Allan Kelly to Sergeant Dowson and Tony Vesperman dated 21 February 2021

Defence filed in the proceedings on 15 February 2021.

Email from Allan Kelly to Sergeant Dowson and Tony Vesperman dated 15 December 2021

Defence filed in the proceedings on 15 February 2021.

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Emails from Allan Kelly to Sergeant Dowson dated 3 April 2022

Information communicated to Allan Kelly by John Hilton during a mediation in the proceedings.

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Email from Allan Kelly to Sergeant Dowson dated 17 October 2022

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Email from John Hilton to Julian Ford dated 15 May 2020 - Fwd: Draft Agreement - Cambodia Share Sale (HIL.001.002.2869).

Document titled 'Binding Term Sheet: Riversgold- Cambodia Gold Share Sale' (HIL.001.002.2870).

Emails from Allan Kelly to Denora Sarin dated 30 August 2022

Letter from Cambodia Gold Pty Ltd to the Minister, Ministry of Mines and Energy undated (HIL.006.001.0560).

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Email from Allan Kelly to Graham Moir dated 8 October 2021 - Gday

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Email from Allan Kelly to Graham Moir dated 14 August 2022 - Re: Translation

Circular from the Ministry of Mines and Energy on Guidelines for Application of Mineral Exploration License dated 7 October 2016 (HIL.001.002.0225).

Letter from Cambodia Gold Pty Ltd to the Minister, Ministry of Mines and Energy (undated) (HIL.006.001.0560).

Emails from Allan Kelly to Graham Moir dated 25 September 2022 - Receipt

Document titled 'Payment Order' issued by the Ministry of Mines and Energy (HIL.006.001.0728).

Emails from Allan Kelly to Graham Moir ending 25 November 2022 - re: Antrong Licences

Email from John Hilton to Julian Ford dated 15 May 2020 - Fwd: Draft Agreement - Cambodia Share Sale (HIL.001.002.2869).

Document titled 'Binding Term Sheet: Riversgold- Cambodia Gold Share Sale' (HIL.001.002.2870).

Message sent by LinkedIn messenger from Allan Kelly to Morgan Hart dated 21 October 2021

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Message sent by LinkedIn messenger from Allan Kelly to Morgan Hart dated 10 February 2022

Information communicated to Allan Kelly by John Hilton during a mediation in the proceedings.

Emails from Allan Kelly to Brad Jones ending 21 August 2022 - re: [External] Cambodia

Letter from Cambodia Gold Pty Ltd to the Minister, Ministry of Mines and Energy (undated) (HIL.006.001.0560).

In person discussion between Allan Kelly and Marion Bush in about July or August 2022.

Document titled 'Binding Term Sheet: Riversgold- Cambodia Gold Share Sale' (HIL.001.002.2870).

In person discussion between Allan Kelly and Jennifer Rezos in about July or August 2022.

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Document titled 'Binding Term Sheet: Riversgold- Cambodia Gold Share Sale' (HIL.001.002.2870).

In person discussions at various times between Allan Kelly and the persons listed in paragraph 64 of the supplementary affidavit of Allan Kelly sworn 26 October 2023 (Exhibit 9).

Letter from Minister of Mines and Energy to Cambodia Gold Pty Ltd dated 4 April 2017 (HIL.010.001.0127).

Document titled 'Binding Term Sheet: Riversgold- Cambodia Gold Share Sale' (HIL.001.002.2870).

Email from John Hilton to Julian Ford dated 24 November 2019 - Fwd: Signed Documents (HIL.001.002.2923).

Email from John Hilton to Julian Ford dated 28 November 2019 - Re: Allan Kelly Correspondence (HIL.001.002.1761).

Email from John Hilton to Julian Ford dated 9 July 2020 - Fwd: FW: RGL - ASX query regarding Cambodia applications (HIL.001.002.2825).

Email from John Hilton to Julian Ford dated 21 September 2020 - Fwd: FW: Cambodian "Applications" (Hil.001.002.0258).

Email from John Hilton to Darren Jones dated 12 July 2020 - Fwd: Re: FW RGL- ASX query regarding Cambodia applications - draft response (HIL.001.001.5668).

Letter from Riversgold Ltd to the ASX dated 13 July 2020 (HIL.006.001.0656).

Email from Darren Jones to John Hilton dated 14 July 2020 - RE: RGL - ASX query regarding Cambodia applications (HIL.001.001.0172).

Email from John Hilton to Darren Jones dated 14 July 2020 - Fwd: ASX draft reply (HIL.001.001.5708) and attachment (HIL.001.001.5709).

Letter from Cambodia Gold Pty Ltd to the Minister, Ministry of Mines and Energy (undated) (HIL.006.001.0560).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mr Kelly brings these proceedings in both his personal capacity and on behalf of the other named plaintiffs. It is not necessary to have regard to those other plaintiffs in these reasons.

[2] Amended Notice of Motion for Committal of the First Plaintiff for Criminal Contempt of Court pursuant to Order 55 rule 4, dated 21 September 2023.

[3] First Plaintiff's Amended Chamber Summons for Orders Dealing with Breach of Implied (Harman) Undertaking, dated 31 October 2023.

[4] Two of the items in the Purge application cover four of the charges in the Committal.

[5] Also referred to as the 'Kang Roland South' and 'Antrong' Licence areas.

[6] Affidavit of Allan John Kelly sworn 14 April 2023 (Exhibit 8) Annexure AJK-22; Affidavit of John Charles Hilton sworn 10 August 2023 (Exhibit 3), [3] and Annexure JCH-1.

[7] Exhibit 3, [4] - [6] and JCH-2-JCH-4.

[9] Affidavit of Shemali Marianne Samaraweera sworn 21 September 2023 (Exhibit 7), SMS-1.

[12] Witham v Holloway (1995) 183 CLR 525, 534.

[13] Witham v Holloway (1995) 183 CLR 525, 530.

[14] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107.

[15] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [40]; Witham v Holloway (1995) 183 CLR 525, 534.

[16] Witham v Holloway (1995) 183 CLR 525, 535.

[17] Witham v Holloway (1995) 183 CLR 525, 530.

[18] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 108 ‑ 109; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [74] (Beazley JA), [167] (Lindgren AJA); Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 489 (Barwick CJ); Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 [146] ‑ [152].

[19] Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [73] (Beazley JA); Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 [146] - [152].

[20] Derived from Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman).

[21] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96] (Hayne, Heydon and Crennan JJ).

[22] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96].

[23] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [106] - [108].

[24] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [106].

[25] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108 [67] - [70].

[26] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [112] - although a lack of such knowledge may be relevant to penalty.

[27] Khoury v Kirwan (No 4) [2021] VSC 333 [108].

[28] Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1Qd R 145 [24] ‑ [50].

[29] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96] (Hayne, Heydon and Crennan JJ).

[30] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [5] (Gleeson CJ).

[31] Harman [1983] 1 AC 280, 302.

[32] Esso Australia Resources Limited v Plowman (1995) 183 CLR 10, 32.

[33] Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1Qd R 145.

[34] Findex Group Limited v iiNet Ltd [2019] NSWSC 1198 [47].

[35] First Plaintiff's Submissions for Orders Dealing with Breach of Harman Obligation, dated 31 October 2023, [44]; First Plaintiff's Closing Written Submissions as to Defendant's Application for the Committal of the First Plaintiff for Criminal Contempt and as to the First Plaintiff's Purge Application, dated 20 November 2023, [77].

[45] First Plaintiff's Outline of Submissions as to Defendant's Application for committal of the First Plaintiff for Criminal Contempt dated 6 November 2024, [18].

[46] This charge corresponds with item 16 of the Purge application.

[47] Exhibit 8, [93] and AJK-49 and Exhibit 2, p 137 - 138.

[53] See, for example, messages on 20 July 2019 (Exhibit 2, p 89); 3 January 2020 (Exhibit 2, p 91); 8 January 2020 (Exhibit 2, p 95); 31 March 2020 (Exhibit 2, p 101); 2 March 2021 (Exhibit 2, p 109 - 110); and 11 March 2021 (Exhibit 2, p 114 - 115).

[57] These charges correspond with items 12 and 14 of the Purge application.

[58] The date of charge 14 was amended on 8 November 2023: ts 08/11/23, 160.

[67] Exhibit 8, [88] and AJK-43 ‑ AJK-48.

[68] These charges correspond with item 7 of the Purge application.

[74] Exhibit 8, [67] - [68]; ts 8/11/2023, 182.

[86] See Lazarevic v The State of Western Australia [2007] WASCA 156.

[87] These charges correspond with item 8 of the Purge application.

[89] Exhibit 8, [69]; ts 8/11/2023, 182 - 183.

[95] Exhibit 8, [72] and [76]; ts 8/11/2023, 202.

[101] See Lazarevic v The State of Western Australia [2007] WASCA 156.

[103] Witham v Holloway (1995) 183 CLR 525, 530; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 108 - 109; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [74] (Beazley JA), [167] (Lindgren AJA); Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 489 (Barwick CJ); Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 [146] - [152].

[104] Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [73] - [74] (Beazley JA); Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 [146] - [152].

[105] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 194, 207.

[106] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 108.

[107] Kazal v Thunder Studios Inc (California) and Anor [2017] FCAFC 111; (2017) 350 ALR 216 [106], cited with approval in Clipsal Australia Pty Ltd v ACN 134 468 205 [2017] FCA 1584; Yuan v Huang (No 2) [2023] NSWSC 1618.

[108] Kazal v Thunder Studios Inc (California) and Anor [2017] FCAFC 111; (2017) 350 ALR 216 [105].

[110] Exhibit 9, [9], [11] - [12], [33] - [34].

[118] Exhibit 8, [59], [106] - [107]; ts 08/11/2023, 232.

[133] First Plaintiff's Closing Written Submissions as to Defendant's Application for the Committal of the First Plaintiff for Criminal Contempt and as to the First Plaintiff's Purge Application, dated 20 November 2023, [11] and [25].

[135] ts 08/11/2023, 201. See also ts 08/11/2023, 206.

[147] ts 08/11/2023, 223, 226 - 228, 232.

[148] ts 08/11/2023, 168; Exhibit 8, [5] - [6].

[149] ts 08/11/2023, 168; Exhibit 8, [5] - [6].

[158] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67.

[165] Exhibit 8, [13] - [19]; Exhibit 9, [31].

[169] Supreme Court Act 1935 (WA), s 69.

[170] C v M [2011] WASC 175.

[171] First Plaintiff's Outline of Submissions as to Defendant's Application for the Committal of the First Plaintiff for Criminal Contempt, dated 6 November 2023, [35]; First Plaintiff's Closing Written Submissions as to Defendant's Application for the Committal of the First Plaintiff for Criminal Contempt and as to the First Plaintiff's Purge Application, dated 20 November 2023, [116].

[172] Witham v Holloway (1995) 183 CLR 525, 530 - 531.

[173] Defendant's Submissions in Support of Application for the Committal of the First Plaintiff, 31 October 2023 [32] - [36]; Defendant's Closing Submissions on Motion for the Committal of the First Plaintiff, dated 14 November 2023, [105] - [118].

[174] C v M [2011] WASC 175 [101].

[175] Witham v Holloway (1995) 183 CLR 525, 530 - 531.

[176] Australasian Meat Industry Employee's Union & Ors v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 106.

[177] Witham v Holloway (1995) 183 CLR 525, 530.

[178] Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 106.

[179] C v M [2011] WASC 175 [101].

[180] C v M [2011] WASC 175 [101].

[181] R, on the application of John Patrick Davey v Silverstein [2020] VSCA 233 [106]; Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 [37] - [38]; Harkianakis v Skalkos (1997) 42 NSWLR 22, 27 - 29; Commercial Bank of Austral Ltd v Preston [1981] 2 NSWLR 554, 558 - 559; Clarkson v The Mandarin Club [1998] FCA 1685; (1998) 90 FCR 354, 360.

[182] Re Coroner's Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483 [64].

[183] Harkianakis v Skalkos (1997) 42 NSWLR 22, 28; Re Coroner's Court of Western Australia; Ex parte Porteous (2002) 26 WAR 483 [21] (Steytler J).

[184] Harkianakis v Skalkos (1997) 42 NSWLR 22, 29.

[185] Harkianakis v Skalkos (1997) 42 NSWLR 22.

[186] Resolute Ltd & Anor v Warnes [2000] WASCA 359.

[187] R, on the application of John Patrick Davey v Silverstein [2020] VSCA 233.

[188] R, on the application of John Patrick Davey v Silverstein [2020] VSCA 233 [105] - [109].

[189] R, on the application of John Patrick Davey v Silverstein [2020] VSCA 233 [106].

[190] Brambles Holdings Ltd v Trade Practices Commission (1980) 44 FLR 182.

[191] Brambles Holdings Ltd v Trade Practices Commission (1980) 44 FLR 182, 194.

[192] Smith v Lakeman (1856) 26 LJ Ch 305, 306.

[193] Clarkson v The Mandarin Club [1998] FCA 1685; (1998) 90 FCR 354.

[194] Re Smauel Goldman [1968] 2 NSWR 325, 327.

[195] See, for example, Exhibit 8, AJK-34, AJK-37; ts 08/11/2023, 215, 225, 227 - 228.

[199] In so doing a person must comply with the Harman undertaking. However, that is a separate issue to that arising under charges 17 - 19.

[200] North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190.

[201] Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd (No 2) [2009] WASC 207.

[202] Ashby v Slipper (No 2) [2016] FCA 550.

[203] Websyte Corporation Pty Ltd v Alexander [2012] FCA 69, [14] - [15], [22]; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476, 486 - 487, 490 - 491; North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 [42] - [45].

[204] Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 [25]; Bastiaan v Nine Entertainment Co Holdings Ltd (2022) 405 ALR 50; [2022] FCA 60 [60]; Attorney-General v Butterworth [1963] 1 QB 696, 719, 723, 728.

[205] Gregory v Philip Morris Ltd (1987) 74 ALR 300, 308.

[206] Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 [40] - [42].

[207] Connolly v Dale [1996] QB 120, 125 - 126.

[214] First Plaintiff's Closing Written Submissions as to Defendant's Application for Committal of the First Plaintiff for Criminal Contempt and as to the First Plaintiff's Purge application, dated 20 November 2024, [166].

[215] For example, Treasury Wine Estates Pty Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95 [89].

[217] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [112].

[219] Amended Defence 8 October 2021 [74.2].

[234] Being document HIL.006.001.0560.