Plaintiff v Defendant

2 In response to a subpoena served upon him by Khoury, Kolt produced 77 emails to the Prothonotary ('subpoenaed emails'). Those emails were uplifted by Khoury's solicitors, Litton Legal, who provided copies of them to Khoury and Ms Jessica Nowell, his partner ('Nowell'). On instructions from Khoury, Nowell provided copies of the subpoenaed emails to Ramsay Healthcare Pty Ltd ('Ramsay Health'), which owns and operates the Albury Wodonga Private Hospital ('AWPH').

3 The consequences of that disclosure for Kolt were serious. Ramsay Health used some of the subpoenaed emails as a basis for a notice to show cause why his accreditation to treat patients at AWPH should not be cancelled. Such a cancellation, had it occurred and become widely known in the Albury-Wodonga medical community, would have harmed Kolt's professional reputation.

4 By disclosing the subpoenaed emails to Ramsay Health, Khoury and Nowell breached the implied undertaking more particularly described in Hearne v Street[1] and commonly known as a 'Harman undertaking'.[2] Simply stated, 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 (specifically including documents produced on subpoena),[3] to disclose documents or information, the party obtaining that disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given, unless it is received into evidence.[4]

5 Khoury and Nowell admit that the disclosure was in breach of the Harman undertaking and that it was conduct in contempt of court.[5]

6 Following the disclosure, three summonses were filed in the proceeding:

(a) on 13 November 2020, Kolt applied for orders to punish Khoury and Nowell for contempt of court for their breach of the Harman undertaking;

(b) on 26 November 2020, Khoury and Nowell applied to purge their contempt and be discharged from any punishment; and

(c) on 13 January 2021, Kirwan applied for orders for the punishment of Khoury and Nowell for substantially that same contempt of court as alleged by Kolt.

7 The alleged tendency to interfere with the administration of justice was particularised by Kolt and/or Kirwan as including:

(a) unlawfully intending to damage Kolt's reputation and jeopardise his accreditation at AWPH;

(b) deterring Kolt and other potential witnesses from giving evidence at the hearing of the proceeding and thereby seeking a collateral advantage in this proceeding;

(c) deterring recipients of the subpoenas generally from complying with their obligations under subpoenas;

(d) defying the authority of the court; and

(e) breaching the overarching obligations of the court pursuant to the Civil Procedure Act 2010 (Vic).

8 For present purposes, I accept that it is likely that Kirwan will call Kolt to give evidence at the trial and that such evidence might reasonably be expected to be favourable to Kirwan.

9 Khoury and Nowell contended that Nowell's disclosure was inadvertent conduct, in the sense that while she knowingly disclosed the subpoenaed emails, she did not understand that in doing so she was breaching an undertaking. Khoury accepted responsibility for Nowell's conduct, but maintained that he did not ask Nowell to disclose the subpoenaed emails. He knew that such disclosure was not permitted. He maintained that Nowell misunderstood his request to send certain material to Ramsay Health causing accidental and unintended disclosure.

10 The two issues in contention on this application, while relatively narrow, are significant.

11 First, Khoury and Nowell submitted that they had made full and frank disclosure of the circumstances of their contempt and that it was an accidental and unintended breach of the undertaking. They had purged their contempt and ought to be discharged without further punishment. This application will be refused.

12 Secondly, Kolt and Kirwan contended that Khoury deliberately breached the undertaking to jeopardise Kolt's accreditation at AWPH and/or to obtain an advantage in the defamation proceeding by discouraging Kolt from giving evidence unfavourable to Khoury. They contended that the breach of the undertaking was contumacious, alternatively wilful. Khoury and Nowell should be found guilty of contempt and punished. On this application, I find Khoury has committed a contumacious contempt and that Nowell's contempt is wilful, but not contumacious.

13 Affidavits (including many exhibited documents) were tendered from the following deponents:

(a) Khoury;

(b) Nowell;

(c) Kolt;

(d) Ms Rebecca Ann Litton ('Litton'), the solicitor for Khoury and Nowell; and

(e) Mr Nathan Buck, the solicitor for Kirwan.

14 Khoury, Nowell, Litton and Ms Sheryl Keir ('Keir'), the CEO of Ramsay Health, gave evidence.[6] None of these witnesses admitted to a reliable recollection of key conversations and, except where it is not possible to do so, I have relied on the contemporaneous documentary records in making the findings of fact that follow.

15 In the context of the disputed issue of Khoury's intention when disclosing the subpoenaed emails, the content of some key telephone discussions, particularly on 30 July 2020 must necessarily be carefully considered. In respect of these conversations, I was satisfied that each of Khoury and Litton were unsatisfactory witnesses with poor recollection, demonstrating pugnacious demeanours, a capacity to dissemble, a tendency to reconstruct events to cast a significantly more favourable light upon them, such that I found their evidence to be unreliable. That said, apart from occasions when their evidence was consistent with the documentary record, I will also note some frank admissions, which they made, and which I accept.

16 Ramsay Health operates AWPH and at all relevant times, accredited Kolt and Khoury to use its operating theatres. Following an independent review carried out by Dr Bernadette Eather in October 2019, Ramsay Health placed restrictions on Khoury's practice accreditation. When he reported the restrictions placed on his accreditation to the Medical Board of New South Wales and the Australian Health Practitioner Regulation Agency ('AHPRA'), as he was required to do, the latter also imposed restrictions on Khoury's practice that remained in place until at least August 2020.

17 Khoury believed that Kolt and Kirwan were responsible for the review of his accreditation. Kolt was the acting chairman of the Medical Advisory Committee ('MAC') at AWPH at the time of the review. Khoury believed that Kolt had breached obligations of confidentiality by leaking details to Dr Eather of Khoury's patients that were known only to Kolt in his capacity as acting chairman of the MAC.

18 In November 2019, Khoury informed the then-CEO of AWPH of his concerns regarding Kolt and asked that Ramsay Health investigate, but he was not satisfied with the resulting general letter about privacy concerns.

19 In the context of these events, in November 2019, Litton Legal sought documents from Kolt that were believed to be defamatory of Khoury. Kolt voluntarily provided certain documents to Litton Legal in response to this request.

20 In February 2020, Ramsay Health informed Khoury of the outcome of the review, imposing a number of restrictions on his accreditation with AWPH. Khoury sought a review of the decision and, in April 2020, made submissions to the Review Committee. On 14 July 2020, Ramsay Health informed him it would lift the conditions imposed on his accreditation.

21 On 23 March 2020, Khoury commenced this proceeding. The statement of claim delivered with the writ alleged that two statements and six emails constituted defamatory publications of and concerning Khoury. Kolt had produced four of the six allegedly defamatory emails. Copies of the emails were annexed to the statement of claim in an attachment, which was defined in the statement of claim as the 'defamatory email book' (apparently a convenient reference term).

22 Two days later, on 25 March 2020, Litton Legal issued and later served on Kolt a subpoena for production of documents to the Prothonotary. The subpoena sought:

(a) all communications, correspondence, documents and emails relating to the death of [a named patient] of Khoury's;

(b) all communications, correspondence, documents and emails as between Kolt and Kirwan since 1 January 2019 in relation to Khoury and/or that patient; and

(c) all communications, correspondence, documents and emails since 1 January 2019 relating to Khoury.

23 Kolt responded to the subpoena by producing the subpoenaed emails to the Prothonotary on or around 1 May 2020.

24 On 5 May 2020, Litton Legal obtained copies of the subpoenaed emails. Litton promptly provided copies to Khoury and Nowell, surprisingly, without any advice to her client about the Harman undertaking that restricted their use.

25 The subpoenaed emails primarily consisted of communications between Kolt and Kirwan. Those emails traversed several topics, including the efficacy of the 'bilateral sequential total knee replacement' procedure, and surgical incidents resulting in the death or injury of AWPH patients. Many references were made to Khoury, using language capable of being thought to be disparaging and abrasive and critical of his conduct.

26 Relevantly, the subpoenaed emails included discussion between Kolt and Kirwan about 'practice support payments' that Khoury had received from Ramsay Health until 2009. The payments were referred to as 'bribes'. In one email, Kolt attached a copy of a 'commercial in confidence' letter sent by Ramsay Health to Khoury in 2009, notifying him that the practice support arrangement had been terminated and included a cheque for $42,000 in full and final settlement of the scheme. Prior to receiving the subpoenaed emails, Khoury believed that Kirwan had referred to the practice support payments as bribes, and had also suggested to others that the hospital was 'in bed with' Khoury.

27 Khoury claimed that on receipt, he read approximately a quarter of the subpoenaed emails, but stopped because he could no longer 'stomach' reading them. He described his reaction in these terms:

Honestly, I was pretty angry. I was really angry... I didn't form a view on anything except the vile nature of what was going on between two people [Kolt and Kirwan] that were professionals.

28 Khoury's anger came from the confirmation, in his mind, that the subpoenaed emails gave to his pre-existing beliefs about Kolt and Kirwan. For Khoury, these documents confirmed his suspicions that Kolt had breached his confidentiality obligations as the acting chairman of the MAC, about which he had complained in November 2019 without a satisfactory response.

29 Khoury discussed the subpoenaed emails with both Nowell and Litton. Khoury promptly instruct Litton to serve a subpoena on Keir as CEO of Ramsay Health that sought production of 'all communications, correspondence, emails and documents passing between Dr Eather/Kolt, Dr Eather/Kirwan, and Mr Greg Hall (Keir's manager)/Kolt between 1 January 2019 and 1 March 2020.

30 On 30 June 2020, Khoury amended his statement of claim to sue on six additional emails, some of which were derived from the subpoenaed emails.

31 On 14 July 2020, Khoury learned that Ramsay Health had decided to lift the restrictions on his accreditation, subject to him fulfilling certain requirements. The restrictions imposed on Khoury's practice by AHPRA remained in place.

32 On 15 July 2020, in the context of a dispute that had developed between Khoury and Ramsay Health about the extent of the response required to the subpoena, Litton Legal provided a copy of the amended statement of claim to Ramsay Health's lawyers, Dominion Legal.

33 On 24 July 2020, the Herald Sun published an article concerning the defamation proceeding. On 27 July 2020, Khoury emailed Keir notifying her of an impending article in The Border Mail (a local newspaper) that he believed would allege a 'cover up' by Ramsay Health.

34 When his cross-examiner put to Khoury that he had a reason to dislike Kolt in mid‑2020, he answered:

I, I would have to be, I would have to be an exceptional human being to hold an exceptional hatred for two people for over a year and to, it would consume my life. Guess what? I am a functioning human being, I don't do that ... I harbour a lot of dislike towards [Kolt and Kirwan] but, um, again, ah, that doesn't play out in real life. In real life I have to function and, and, and be a normal person and being a normal person isn't carrying out random acts of hatred towards people. That's not the way it is.

35 This response was dissembling. As will be seen, this review and its consequences remained a fairly constant presence in Khoury's life until he commenced to read the subpoenaed emails. Khoury stated that he was very upset when he started reading those emails believing they proved true his beliefs about Kolt that had not to that point been accepted by Ramsay Health. His animus towards Kolt, based in the circumstances I have explained, at the least, resurfaced when he learned The Border Mail intended to publish negative stories about his accreditation with AWPH.

36 The events so far described provide part of the context for what occurred on 30 July 2020, when Nowell provided copies of the subpoenaed emails to Keir. Before describing the events of that day, it is pertinent to note five other matters that give context and colour to those events.

37 First, Nowell and Litton are close personal friends. Litton said that was not unusual for the two of them to speak on the phone every day, as occurred on 30 July 2020.

38 Second, Nowell, whose employment skills are in the fields of marketing, client relations and community strategy was casually employed by Litton Legal in a position entitled 'Head of Community and Partnerships'.

39 Third, Nowell was the principal carer for her three young children who were then aged two, four and five, one of whom was unwell at the time. She was assisting Khoury with administrative tasks in relation to his practice, as his practice manager had left his employment a week or so earlier. In addition, Khoury and Nowell had entered into an unconditional contract to purchase a property in Melbourne for, which finance was required. Khoury also had a surgery list on 30 July 2020. I was invited to accept that all of these matters placed considerable pressure on Khoury and Nowell of a kind that contributed to making an innocent mistake by sending copies of the subpoenaed emails to Keir.

40 Fourth, there is the context of enquiries being made by a journalist with The Border Mail prior to and on 30 July 2020. An article subsequently published by that journalist on 1 August 2020:

(a) noted that Khoury was taking action against Kirwan, alleging that Kirwan had implied that Khoury was a serial killer, had acted in a criminal manner and was corrupt;

(b) suggested that Kirwan had a reputation for hostility towards Khoury;

(c) briefly explored the allegations made in the pleadings, and commented on an application to have the case transferred to the Supreme Court of New South Wales;

(d) noted that an investigation by Ramsay Health resulted in restrictions being placed upon Khoury's operating privileges at AWPH, and the consequent notification of those restrictions to AHPRA;

(e) quoted observations made by Litton Legal; and

(f) attributed some remarks to Ramsay Health, without identifying the spokesperson.

41 The content of The Border Mail article aids in understanding the probable content of discussions that I will come to between the journalist and Litton, on the one hand, and between Litton and Keir, on the other hand. Khoury and Litton, having defamation proceedings on foot, were concerned that the article be accurate and not defamatory of Khoury. In particular, Khoury was concerned that the journalist might report on the controversy over practice support payments/bribes and the restrictions on his practice accreditation, as he did not appear to know that Ramsay Health had lifted those restrictions.

42 Fifth, other necessary background is an appreciation of Keir's knowledge of the circumstances as at 30 July 2020.

43 Keir was new to AWPH, having started as CEO on 1 April 2020. She knew nothing of the history between Kirwan and Khoury, and said that she didn't really want to know. She believed that Litton spoke to her on 30 July 2020 about the defamation proceeding because Litton thought that she should have an understanding of its history, although I am satisfied that what Litton wanted was a consistent message from Ramsay Health that was not detrimental to Khoury's reputation. Both Litton and Keir, despite being very vague about what was said in conversation between them that day, were both emphatic - as Khoury had been - that nothing was said in the conversation about the subpoenaed emails. For reasons that will become clear, I do not accept these denials. I was struck by the consistency of an isolated emphatic response about the subpoenaed emails.

44 Although Keir professed not to know about an implied Harman undertaking, there was no evidence that the solicitors employed in Ramsay Health legal department ('Ramsay Legal') who drew up the show cause notice were also ignorant of that principle. It is probable that there were discussions about the exposure to risk through Ramsay Health's use of the Kolt subpoenaed documents, and I have no doubt that Keir had participated in such discussions by the time she gave her evidence, doing so under the protection of a s 128 certificate for that reason. I was satisfied that Keir had motive to downplay the circumstances of receipt of the Kolt subpoenaed documents and did so as her evidence was characterised by her memory lapses or by a reconstructed recollection in a way most favourable to her and Ramsay Health.

45 Having carefully considered the conflicting accounts given to the court about the events on 30 July 2020, I make the following findings of fact about what occurred that day.

46 Initially, at about 9:00am, Litton discussed the defamation proceeding and Ramsay Health's review into Khoury's practice with The Border Mail journalist, in what she described as an unpleasant conversation.

47 At 9:54am, Litton phoned Khoury and reported to him on her conversation with the journalist. Although neither Litton nor Khoury had a specific recall, it seems clear that they decided that Litton should speak with Keir, because immediately on completing her call with Khoury, Litton left a message with Keir's assistant to the effect that she wished to discuss with Keir The Border Mail's intentions in publishing an article concerning Khoury.

48 Litton followed this telephone conversation with an email to Keir's assistant at 10:10am:

Hi Jo

Thank you for taking my call.

I note that the on the record statement given by Carmel was that Ramsay still had restrictions on Elie's practice. I have in hand the letter sent to Elie by Sheryl which contradicts that statement. As such, I have a feeling there has been some miscommunication between you and your PR department.

Obviously, this article will reflect poorly on not only your organisations but Elie's practice. This matter needs to be dealt with as a matter of priority and we need to make a statement. I am not inclined to make a statement that is inconsistent with the hospital and reflects poorly on our client.

If this is a matter for Carmel can you please send me her details, if not, I would appreciate if Sheryl (copied) could contact me asap.

Regards

Rebecca Litton.

49 Some 15 minutes later, Keir phoned Litton and spoke to her for approximately 20 minutes. Bearing in mind the context provided by the content of The Border Mail article as published, the evidence of this conversation is unsatisfactory. Neither party had a clear recollection of this conversation, save that they could recall they discussed the enquiries from The Border Mail journalist.

50 Litton, whose evidence preceded Keir's, could not remember Keir asking any questions about Kolt, but was certain there was no discussion about the subpoenaed emails. She denied that she discussed providing copies of any documents to Keir.

51 Litton's evidence was consistent with Khoury's earlier (and firmly expressed) explanation, which I reject, that he had spoken to Keir that day and discussed sending the statement of claim to her, after first having checked with Litton to confirm he could do so. When asked whether he discussed the subpoenaed emails with Keir, Khoury was emphatic that there was no discussion. This emphatic denial was a mirage, an oasis of apparent recollection in what was otherwise a large desert of memory loss and vagueness. Pressed by his cross-examiner whether he was saying he had no discussion at all with Keir about the content of the emails, he answered:

I was allowed to send her, and I checked with my lawyer at the time, the statement of claim. That's what - that's what we talked about sending... I was allowed to send the statement of claim and the portion of the emails from the subpoenaed emails that made up the defamatory emails book. That, that I was allowed to send.

Litton could not recall Khoury's query, but did not deny it. However, I do not accept Khoury's evidence as accurate, at best it is mistaken reconstruction.

52 Keir's evidence about her conversation with Litton conversation was different. She recalled discussing the statement of claim during the conversation, and developing an expectation of receiving a copy, although she stated she didn't understand what a statement of claim was. Keir did not appear to be concerned by the journalist's inquiry, and gave no evidence of discussing any matter that might appear to be derived from The Border Mail article, or the email from Litton to her assistant. Keir could not recall any conversation with Khoury that day, and her evidence was complementary with Nowell's narrative, that it was Litton and Keir who had discussed the statement of claim, rather than Khoury and Keir.

53 Litton and Khoury were both recalled to give further evidence arising from Keir's recollection of what occurred on 30 July 2020. Litton abandoned her earlier evidence regarding the provision of the statement of claim to Keir, stating that it was more likely than not that she asked Khoury to send the statement of claim to Keir. Khoury maintained his recollection that he had spoken to Keir about the statement of claim.

54 The evidence of Litton, Khoury and Keir about the conversations immediately prior to Nowell's despatch of the subpoenaed emails was irreconcilable and most unpersuasive. I am satisfied beyond reasonable doubt that the evidence of each of them is unreliable reconstruction in which the statement of claim alone - and not the subpoenaed emails - was discussed with Keir. This reconstruction suited the three of them, and conveniently arises out of what was sent by Nowell. I do not accept it.

55 I reject Khoury's evidence that he had a conversation with Keir about The Border Mail article that day. His evidence was too vague and unreliable, was inconsistent with the evidence of Keir, Nowell and Litton (when recalled), with Nowell's email to Keir at 11:22am (discussed below), and with Khoury's own evidence, which I also reject, that he checked with Litton that he was permitted to send the statement of claim to Keir before he had even spoken with her.

56 Pausing here, Khoury never explained precisely when and how he learned about the obligations of a Harman undertaking. In the conversation with Litton about sending the statement of claim, discussed later in these reasons neither of them described any discussion about the subpoenaed emails, or his right to use or disclose them. It may be that Khoury had a pre-existing understanding of the obligation, or Litton may have discussed the obligation with him prior to the subpoenaed emails being first sent to him. I cannot make any finding in this respect. His evidence that on 30 July 2020, he knew that he 'wasn't allowed' to send the subpoenaed emails to a third party was unchallenged.

57 Keir had no interest in the defamation action. Both Khoury and Keir were more interested in the events surrounding the restrictions on Khoury's right to practise. While the statement of claim would provide some context in which to understand the journalist's enquiry about the defamation proceeding, Litton's motivation was to ensure a consistent message concerning the issue of restrictions on Khoury's accreditation at AWPH. Her email to Keir's assistant makes clear that she considered The Border Mail had received erroneous information from Ramsay Health on this issue, which she sought to be corrected by issuing a further statement, as does the further statement that was issued the following day.

58 The only contemporaneous record of the phone conversation between Litton and Keir, a file note made by Litton, supports this conclusion. There is no note of any discussion concerning the defamation proceeding, or the suggestion that Litton would provide a copy of the statement of claim to Keir. The note commences with some rough and incomplete sentences, likely typed contemporaneously during the conversation, which appear to refer to the conversations that Litton and Keir had separately had with The Border Mail journalist. The file note then contains two paragraphs that are in near-identical form to the media statement made by Litton Legal that was sent to the journalist the following day.

59 I am satisfied that the purpose of Litton's phone call with Keir was to address Ramsay Health's communications with The Border Mail to date, and to discuss the proposed media statement that Litton Legal intended to issue on Khoury's behalf. I am not satisfied that the issue of producing a copy of the statement of claim, if discussed at all, was anything other than an incidental part of the conversation in order to provide some context to Keir about the current state of the dispute between Khoury and Kirwan that was a matter of interest to the journalist but not to Keir.

60 Litton contacted Khoury immediately after speaking with Keir. Their evidence concerning what was discussed during this phone call was unpersuasive. It is probable that Litton reported on the substance of her discussion with Keir.

61 When Litton was recalled, she said it was 'more than likely' that she asked Khoury in this phone call to organise the statement of claim to be sent to Keir. It is, to say the least, curious that if Litton and Keir discussed the statement of claim, Litton did not simply email it directly to Keir, either during or immediately following their telephone conversation. She suggested, when asked to explain, that such a request made to a client might be made if she was 'really busy', a response that was abstract. I do not accept this evidence. Khoury and Nowell also gave evidence that they were 'really busy' that day.

62 Whatever was discussed by Khoury and Litton, I am satisfied that Khoury decided for himself, on the basis of Litton's report of Keir's conversation, that the information that Keir needed was the subpoenaed emails. Despite his false denial, he was motivated to send those documents to Keir.

63 I noted earlier Khoury's enlivened animus towards Kolt at this time. Keir had an unfavourable view of both Khoury and Kolt. About Khoury she said, and this was in part consistent with observations that I made of Khoury's demeanour in the witness box:

Your Honour, can I speak freely? Elie has little insight into his own behaviour. He can be like a dog at a bone and very tunnel visioned, and it's not uncommon for me to get a string of emails, a string of text messages, a string of phone calls, a string of storming into my office because he's got a bee in his bonnet about something. He held Ramsay and our system totally responsible for what had happened to him, and he was angry at us, me, um, it's not unusual that I would have a string of emails and a string of text messages from Elie Khoury about any one particular subject at any given time. That's - that's how he is. He gets a bee in his bonnet. He gets aggressive and tunnel visioned about it. Until he hears an answer that he wants to hear, he keeps going.

64 Khoury did not discuss with Litton who would provide the statement of claim to Keir, or whether it was a document that Khoury was permitted to circulate. That part of their evidence was nonsensical, and I am satisfied that Litton was reconstructing from her poor recollection in the absence of a diary note as to what might have occurred.

65 That said, I accept that Litton understood the nature of a Harman undertaking and that the subpoenaed emails were protected by it. She neither improperly disclosed those documents, nor gave advice that those documents might be disclosed by Khoury or Nowell. I am satisfied that Litton was not aware that Khoury, for his own reasons as discussed above, wanted Keir to see the subpoenaed emails. I am satisfied to the requisite standard that Khoury wanted Ramsay Health to see that his complaint in late 2019 that Kolt had breached confidence had been correct.

66 There was conflict in the evidence as to what happened next.

67 I find that Khoury phoned Nowell and asked her to forward 'the emails' to Keir. Nowell's evidence was that Khoury told her that Litton had spoken to Keir, which I accept, and that Khoury wanted her to 'send the emails and the statement of claim'. Nowell stated that she responded by asking 'what do you want me to send', to which Khoury repeated 'just send the emails'. That instruction was intended, and understood, to refer to the subpoenaed emails. I find Khoury also asked Nowell to send Keir the letter from Ramsay Health dated 9 July 2020 that lifted the restrictions on his practice. This last document was central to the discussions between Keir and Litton about a consistent message being given to The Border Mail journalist, and was expressly referred to by Litton in her email to Keir's assistant. It is also consistent with Litton's earlier conversation with Keir being mainly about the restrictions on Khoury's right to practise, rather than the defamation proceedings.

68 I was not persuaded that Keir either requested, or was offered, a copy of the statement of claim, or the emails annexed to it. She received a copy because of Khoury's unilateral determination that Keir needed to see the documents she was sent.

69 As Khoury intended, Nowell followed his instructions. Between 11:07am and 11:25am, Nowell sent Keir five emails from her personal email address. Khoury was copied into each email and accepted that he received them. I reject his evidence that he did not read or see these emails. I am satisfied that Nowell copied him in to those emails to confirm that she followed his instructions to provide the subpoenaed emails to Ramsay Health.

70 I reject Khoury's emphatic statement that he did not see either the 11:07am or 11:11am emails. He said:

[w]hat I am saying is what I said before, is I didn't look and I didn't notice and I wasn't looking, and I wasn't really [looking] to try and notice because I was thinking about things or doing other things and I am sorry about that.

71 The first of the emails was sent at 11:07am with the subject line:

STRICTLY CONFIDENTIAL: Jeremy Kolt Subpoena Email's [sic] re: Khoury v Kirwan.

Hi Sheryl,

Please see attached emails that were subpoenaed from Dr. Jeremy Kolt in relation to Elie's matter.

If you have any questions please let me know.

My mobile is ...

Kind regards,

Jessica Khoury.

72 This email is unambiguously clear. Nowell's evidence was that she had to search through her own emails to find the email from Litton to which the subpoenaed emails were attached, in order to email them to Keir. In other words, she went to some trouble to construct the required email.

73 However, the copy of the email tendered in evidence has an icon containing the text 'Kolt - USB.zip', a downward pointing arrow, and the text 'Zero KB'. Consistent with Nowell's belief, I am satisfied that it appeared to her that the ZIP file attachment containing the subpoenaed emails had not been sent with the email. That is irrelevant for two reasons. First, what was intended is clear from the body of the email.

74 Second, the same attachment was sent four minutes later. The second email was sent at 11:11am with the subject line:

Hi Sheryl,

Please see attached file. It should have 77 emails - if you have any questions please feel free to contact Elie, myself or our lawyer Rebecca Litton

Thankyou again,

Kind regards,

Jessica Khoury.

75 The attachment icon printed on the email shows that the ZIP file of emails was sent. Nowell's evidence was that she sent this email because she was concerned that the 11:07am email had not properly sent. However, she did not simply send the first email a second time. Nowell changed the email, removing the words 'Jeremy`, `Subpoena` and `re: Khoury vs Kirwan' from the subject, and completely rewrote the body of the message. Nowell told her cross-examiner when asked to explain these changes that she 'was just rushing', a nonsensical response. She accepted that she knew that by sending the first two emails, she was providing Keir with documents produced on subpoena by Kolt.

76 Nowell sent the third email at 11:19am with the subject line:

STRICTLY CONFIDENTIAL Khoury v Kirwan re: Defamatory Email Book part 2

Hi Sheryl,

As discussed with Rebecca please see below - for the Defamatory Emails Book that accompanies the Statement of Claim.

Thanks again,

Jessica.

77 Nowell had not spoken with Keir that day. When asked why she included the words 'as discussed with Rebecca [Litton]' in the email, she avoided answering the question, and, dissembling, claimed she was trying to be polite, was rushing and wasn't thinking about anything. She later said she understood that Litton had spoken with Keir from her earlier conversation with Khoury.

78 Where Nowell sourced the attachment to this email was unclear, as the documents in evidence and the amended statement of claim filed with the court show the Defamatory Email Book was appended to the amended statement of claim in a single PDF.

79 Nowell sent the fourth email at 11:22am with the subject line:

STRICTLY CONFIDENTIAL Statement of Claim Khoury vs Kirwan

Hi Sheryl,

Please see attached Statement of Claim as discussed with Rebecca this morning.

If you have any further questions please don't hesitate to contact Elie, Rebecca or myself.

Kind regards,

Jessica Khoury.

80 It is only by this fourth communication that the statement of claim was provided, notwithstanding the oral evidence of both Litton and Keir that it was only the statement of claim that was discussed.

81 Telephone records show that within a few minutes of the fourth email being sent, Nowell called Khoury, but he had no recollection of the call.

82 Nowell sent the fifth email at 11:25am with the subject line:

RAMSAY General Counsel Letter to Elie - Private & Confidential

Hi Sheryl,

Just incase [sic] you advent [sic] seen the below letter from Ramsay - removing Elie's restrictions unanimously.

Again, any questions please let me know.

Thanks again,

Jessica.

Attached to this email was a copy of the letter of 9 July 2020 from Ramsay Health to Khoury informing him that the restrictions on his accreditation had been removed.

83 Although I have not found it necessary to try and place every communication in a precise chronological sequence (apart from the five key emails), phone records from 30 July 2020 revealed:

(a) two text messages from Keir to Khoury sent at 12:02pm and 12:06pm;

(b) three telephone calls between Khoury and Litton;

(c) four telephone calls and one text message between Keir (or her assistant) and Litton;

(d) eight telephone calls between Nowell and Khoury; and

(e) seven telephone calls between Nowell and Litton.

84 In the afternoon of 30 July 2020, Khoury and Keir also exchanged a series of emails about the restrictions imposed by Ramsay Health on Khoury's practice, resulting in an arrangement for Khoury to meet Keir on 3 August 2020.

85 On 5 August 2020, Keir provided the subpoenaed emails to Ms Justine Lloyd, a lawyer at Ramsay Legal. She forwarded the second email that she had received from Nowell at 11:10am, which made it plain to Ramsay Legal that the documents had come from Khoury (via Nowell). The subject of the email included the words 'STRICTLY CONFIDENTIAL' and 'Kolt Emails'. The apparent failure by Ms Lloyd to query Keir regarding the origin of these documents was unexplained.

86 Following receipt of the subpoenaed emails, Ramsay Legal prepared the show cause notice that was issued by Keir to Kolt on 12 August 2020. The show cause notice was based on six emails from the subpoenaed emails that Keir described in the notice as being 'recently brought to my attention'. Coincidentally, the following day, Keir sent a letter of support to AHPRA seeking removal of the conditions on Khoury's registration.

87 Keir was initially evasive as to whether the decision to send the show cause notice was based upon the subpoenaed emails provided to her by Nowell. That evasiveness was consistent with Keir realising, or learning, of the potential adverse consequences of the improper use of those documents at some point between receiving those emails and giving evidence. I am satisfied that this realisation contributed to both a selective recollection of the her interactions with Litton, and an element of reconstruction to place her role in these events in a more favourable light. Keir was, for example, unable to provide any explanation as to why she forwarded the subpoenaed emails to Ramsay Legal.

88 Keir had another reason for believing the show cause notice should be sent to Kolt:

I've had some issues with Dr Kolt. He refused to engage with me at all despite several attempts by my EA to get him to come and meet with me or for me to go and meet with him. I had reason to write to him in a period after COVID when we had to implement our checking stations where everyone had to sign in to a register, and he had been signing in to that register as Prince Andrew. Um, I was concerned that he was operating in isolation. There were fractures within the medical community and I could not get him to come and talk with me at all about anything. So they were my precipitating reasons why I needed to get Dr Kolt to the table to talk to me.

89 While Keir wanted to get Kolt 'to the table to talk to' her, Khoury presented the opportunity to achieve that goal in the form of the subpoenaed emails. The show cause notice was, despite initial suggestions otherwise, entirely based on the subpoenaed emails. About the relationship between the subpoenaed emails and the show cause notice, Keir, too, was dissembling.

90 I am satisfied that Ramsay Health would not have sent a show cause notice to Kolt had Nowell not sent the subpoenaed emails to Keir.

91 On Friday 21 August 2020, Kolt's solicitors responded to the show cause notice by letter. They informed Keir that the six emails referred to in the show cause notice were produced to the court in response to a subpoena issued to Kolt in the defamation proceeding, and only available inference as to how they had come into possession of Ramsay Health was that a party to that proceeding had disclosed them, in breach of the Harman undertaking. The letter further noted that the acts of disclosing the documents to Ramsay, and Ramsay's use of six emails in the show cause notice, may each constitute contempt of court.

92 Keir promptly notified Ms Lloyd and her state manager, Mr Greg Hall. Ramsay Health engaged MinterEllison, who responded to Kolt's solicitors later that day. The source of the subpoenaed emails was clearly obvious to those external lawyers from the paper trail in Ramsay Heath's records, as were the consequences of having used them in breach of the Harman undertaking.

93 On 24 August 2020, Ramsay Health withdrew the show cause notice 'effective immediately', asserting that until the receipt of the letter from Kolt's solicitors, Ramsay Health had not been aware that the documents had been produced on subpoena. It is not necessary to interrogate this assertion. Ramsay Health undertook to delete the subpoenaed documents.

94 On the same day, at some point prior to 1:00pm, Nowell was conversing with Khoury on the phone while in Litton's office, such that Litton could overhear what Nowell was saying, apparently circumstances that were not unusual. Litton stated that she overheard Nowell telling Khoury 'I sent her the documents', which caused her to ask what she was talking about. Litton quickly came to the realisation, during the course of this phone conversation, that the subpoenaed emails had been sent to Ramsay Health. Litton, Khoury and Nowell each asserted that they had no knowledge of the show cause notice, or that it had been withdrawn that day following the correspondence from Kolt's solicitors.

95 Litton, after speaking with counsel, advised Nowell to write to Keir, which she did by email at 2:00pm that day, as a reply to the second email she had sent on 30 July 2020:

Hi Sheryl,

I hope you are well. I just wanted to touch base with you regarding the below email.

I am really sorry but I mistakingly (sic) sent you the below emails in error as I wan (sic) panicking with the Border Mail pressure; the below documents are subpoena documents and only for the purpose of the court.

If you wanted to use any of the below 77 emails for any other purpose - you would need to seek leave of the court or subpoena them through another court action.

Alternatively the Defamatory Email Book that is an attachment to the Statement of Claim can be used as that is now public record. Or any documents that we receive prior to issuing proceedings (as attached) can be used. If there is something in particular that you would like to refer to - I am happy to check if it can be used.

I apologise for any confusion and my mistake, Elie told me to forward the emails and I assumed it was everything.

I am so sorry it has been a horrible time.

Kind regards,

Jessica Khoury.

96 The evidence did not make clear who drafted this email. It is curious that it extended beyond apologising for inappropriate disclosure to making suggestions for alternative ways of using some of that material and apparently attaching further documents that could be used.

97 By no later than Keir's reply at 5:23pm that evening, Nowell, Khoury and Litton were aware that Ramsay Health had received legal correspondence the preceding Friday, and that 'action has been taken and the material will be deleted'.

98 I was not persuaded that Litton, Khoury or Nowell were aware of the show cause notice sent to Kolt, or that it had been withdrawn earlier that day. It was not apparent whether there was any contact between Keir and either Khoury or Nowell following the letter from Kolt's solicitors on 21 August 2020. There was a conversation of significant length between Litton and Nowell the following day, but I can make no finding about what was discussed beyond matters of a personal nature.

99 Apart from advising Nowell to communicate by email with Keir, Litton took no steps, as solicitor on the record for Khoury in the defamation proceeding, to correspond with any party to the proceeding or the court, notwithstanding that she appreciated that there had been a breach of a Harman undertaking.

100 Kolt's solicitors initiated correspondence with Litton Legal on 23 September 2020, seeking an explanation of the circumstances of the disclosure of the documents Kolt had produced on subpoena. Those solicitors requested copies of documents, including all relevant correspondence, to assess the contention that the disclosure of the subpoenaed emails was inadvertent. On 29 September 2020, Litton Legal replied with a perfunctory explanation, and did not provide copies of the requested documents.

101 Two days later, Litton Legal responded to a further letter from Kolt's solicitors, which included a copy of the email exchange between Nowell and Keir on 24 August 2020, after the show cause notice had been withdrawn, which also included the second email sent at 11:11am on 30 July 2020, as an earlier email in the chain. That day, Nowell also forwarded to Litton a copy of the first email that she sent to Keir at 11:07am on 30 July 2020. Despite having received the first email from Nowell that day, Litton did not disclose it to Kolt's solicitors, nor was any apology for the breach of undertaking proffered.

102 Approximately six weeks later, on 13 November 2020, Kolt filed his contempt summons.

103 On 17 November 2020, Kirwan's solicitors stated their intention to also make a contempt application, to which Litton Legal responded the same day, enclosing the correspondence with Kolt's solicitors, and describing Ms Nowell's disclosure as inadvertent, made without Litton's implicit or explicit consent. The letter further stated:

We would be content to set out these matters and circumstances in full in an affidavit and provide it to the Court, and to bring it to the attention of the Court on the next return date of these proceedings.

104 The application by Khoury and Nowell to purge their contempt was filed on 27 November 2020. It was supported by an affidavit sworn by Litton, on information and belief, which did not disclose the 11:07am email sent by Nowell on 30 July 2020, but did contain an apology to Kolt.

105 Khoury filed an affidavit on 10 February 2021, that also did not disclose the 11:07am email, which was disclosed for the first time by Ms Nowell in an affidavit sworn on 26 February 2021.

106 I noted at the outset that it is not in dispute that the Harman undertaking was breached, and that a breach constitutes contempt of court. The Harman undertaking also binds third parties to whom information is given, which includes Nowell.[7] There is a public interest in the enforcement of a Harman undertaking to maintain the integrity of the administration of justice. That is so even though a Harman undertaking serves a private interest in protecting the privacy of persons who are compelled to produce confidential documents by court process.

107 The elements of contempt must be established beyond reasonable doubt. Although not in issue on this application, an intention to interfere with the due administration of justice is not a required element of contempt.[8] It is not necessary to prove that the disclosure was committed with knowledge of the Harman undertaking or the legal consequences should it be breached. That said, intention and knowledge are relevant to penalty.[9] In CFMEU v Grocon ('CFMEU'), the Court of Appeal observed:

The public interest requires that any disobedience more than casual, accidental or unintentional must at least be regarded as wilful. Thus, a deliberate act or omission which is in breach of an injunctive order or an undertaking, will ordinarily constitute wilful disobedience unless the alleged contemnor is able to show, by way of exculpation, that the default was casual, accidental or unintentional.[10]

108 As it is not in contest that there was deliberate action by sending the subpoenaed emails to Keir, or that such disclosure was in breach of the Harman undertaking, the onus to prove, by way of exculpation, that the disclosure was casual, accidental or unintentional rests with the contemnor on the balance of probabilities.

109 Kolt and Kirwan submitted that the contempt was not a casual, accidental or unintentional disclosure, but was contumacious, alternatively wilful. In CFMEU,[11] the Court of Appeal explained the difference between a contempt that is wilful and one that is contumacious. A contumacious act involves deliberate defiance of, or a specific intention to defy, a court order, including, for example, where the person knows that the conduct is prohibited and has no reasonable belief that it can be excused. A wilful contempt, on the other hand, is one where the disobedience is more than casual, accidental or unintentional, but falls short of being a contumacious or defiant.

110 A deliberate disclosure of documents in breach of a Harman undertaking will constitute wilful disobedience, unless it is casual, accidental or unintentional.[12] This focusses attention on the characteristics of the disclosure conduct. Was disclosure deliberate or an unintended mistake?

111 It is unnecessary to contribute further to the debate about the distinction between a civil contempt and a criminal contempt.[13] A finding of contumacious conduct is relevant only to penalty as an aggravating circumstance of the contempt. It is not an allegation that must be specifically pleaded, but is a matter that must be established, beyond reasonable doubt, by an applicant seeking that a person adjudged guilty of contempt be punished accordingly.[14]

112 An applicant seeking to purge their contempt must apologise unreservedly, and offer to pay appropriate compensation (or reparation for damages suffered) and costs on an indemnity basis. On any such application, the court is entitled to expect a full and frank disclosure of the circumstances giving rise to the contempt.[15] However, if the contemnors seek to purge what they contend is a casual, accidental or unintentional disclosure, that must, in fact, be the case.

113 The application by Khoury and Nowell to purge their contempt is rejected for two reasons.

114 The first reason is that I am not satisfied that there has been full and frank disclosure on this application. When seeking to purge a contempt, both litigants and their legal representatives owe a paramount duty to the court of comprehensive candour to further the due administration of justice. That is because the purpose of the law of contempt is to 'uphold and protect the effective administration of justice'.[16] The standard of disclosure expected when the intention or mental state of the contemnor is challenged is high. Khoury and Nowell have not persuaded me that their contempt was inadvertent, accidental or unintended.

115 Kolt and Kirwan put into contest from the outset the adequacy of the explanation of the contempt that Khoury and Nowell sought to purge. The explanation proffered had a 'trust me' or ipse dixit quality. Kolt and Kirwan were expected to meekly accept the perfunctory explanation given by Litton Legal. Given the consequences that befell Kolt and the context in which those consequences developed, he was entitled to demand a fuller explanation, in convincing terms and supported by contemporaneous documentary records, of the alleged accidental quality of the disclosure. It is unsurprising that he asked for it.

116 As is apparent from these reasons, a deep dive into the background facts and the surrounding circumstances of the disclosure was warranted, in order to identify and properly understand Khoury and Nowell's true intention and purpose. Many of the matters that I take into account in assessing the quality of the contempt were not found in the affidavits filed on behalf of Khoury, Nowell and Litton, but emerged during their cross-examination, a fact which, of itself, highlights that their disclosure was not full and frank.

117 During the hearing, Kolt and Kirwan put particular emphasis on the failure of Khoury and Nowell to disclose the first email sent at 11:07am on 30 July 2020. It was not to the point that the attachment to the email was not transmitted. The message in the body of the email that was transmitted is relevant when assessing intention. Not only does that email clearly identify the nature of the disclosure Nowell was making to Keir - subpoenaed documents produced by Kolt in the defamation proceeding - but it was the first action taken by Nowell in response to Khoury's request. She first sent the subpoenaed emails, not the statement of claim, and not once, but twice. It was not until the fourth email that the statement of claim was sent, despite the assertions of Khoury, Litton and Keir that it was the defamation action and the statement of claim that was discussed, rather than the restrictions being placed upon Khoury's accreditation with AWPH.

118 The first email was withheld despite being provided by Nowell to Litton immediately after Kolt's solicitors reiterated their request for copies of all relevant correspondence to assess the alleged inadvertent nature of the disclosure. I am satisfied that the genesis of Nowell's search for and forwarding of the first email was the receipt of this request. In preparing a response, Litton asked Nowell for any further documents and Nowell provided the first email. The first email had also been copied to and received by Khoury. A number of opportunities to put those documents into evidence were missed, yet it wasn't disclosed until Nowell's affidavit of 26 February 2021, four months after the application to purge was filed. I do not accept the explanations for that failure that Litton offered. I am satisfied that this selective disclosure was deliberate.

119 The absence of that email alone meant that there was not full disclosure on the application to purge. However, there were further shortcomings in the evidence. Khoury failed to disclose in his affidavit the history of his conflict with Kolt or his reaction on reading the content of the subpoenaed emails. The evidence of Khoury, Nowell and Litton concerning the circumstances of 30 July 2020 was inexplicably discordant. The explanations to the court about the circumstances of the contempt relied on by Khoury and Nowell were not frank, but selective.

120 The second reason is that Khoury and Nowell did not satisfy the necessary conditions to purge their contempt. Although Khoury and Nowell offered to pay Kolt's costs on an indemnity basis (Kolt having not sought any further compensation), their apologies were wanting. In light of my finding as to intention, an apology for breaching a Harman undertaking on the basis that the breach was inadvertent, accidental or unintended, and neither deliberate nor calculated, is unacceptable. Khoury stated in his affidavit that he had neither an intention nor the purpose of damaging Kolt's reputation, or jeopardising his accreditation at AWPH. As I will explain in due course, I accept that this was so but nevertheless he did not disclose his true purpose. I do not regard the apologies proffered as being full and unreserved, in the sense required, because Khoury did not admit his true intention or to truly understanding the scope of his contempt.

121 The summons filed on 26 November 2020 on behalf of Khoury and Nowell seeking to purge their contempt and be discharged from any punishment will be dismissed.

122 The remaining issue is whether the breach of the Harman undertaking by each of Khoury and Nowell was contumacious, alternatively wilful. For the reasons that follow I am satisfied beyond reasonable doubt that Khoury's deliberate breach of the Harman undertaking was contumacious. Nowell's breach was not contumacious, but it was wilful.

123 Turning first to Nowell's state of mind, Kirwan and Kolt submitted that I should find that Nowell had deliberately sent the subpoenaed emails to Keir, with the intention of embarrassing and or discrediting Kolt. I am satisfied that Nowell knew she was sending subpoenaed documents to Keir. She knew their source and, having discussed the documents with Khoury, she appreciated that he was angry with Kolt and was upset by the consequences he was forced to endure for which he believed Kolt was responsible. That said, I am not satisfied to the requisite standard that Nowell was complicit in Khoury's true intention, which I will come to.

124 The alternative inference open on these facts was that Nowell was doing no more than performing an administrative function at Khoury's request. She was following his unambiguous instruction, but with the state of mind that I have described. While Khoury must accept responsibility for Nowell's actions in these circumstances, I was not satisfied that the only inference that can be drawn as to Nowell's intention was that she shared the same motivation as Khoury.

125 Not being persuaded that Nowell was deliberately defiant of the Harman undertaking, or that she specifically intended to defy the purpose of the principle embodied in the undertaking, I am satisfied that her disclosure of the subpoenaed emails was not contumacious. I accept her evidence that she did not know of, or understand, the principle underlying a Harman undertaking. However, the language used in the first two emails is inconsistent with casual or accidental disclosure of the subpoenaed emails. The disclosure was deliberate, motivated by Nowell's intention to discharge the task as Khoury instructed, which was to 'send the emails' to Keir.

126 Nowell's lack of understanding of the nature or extent of the obligations of a Harman undertaking does not deprive the disclosure of its deliberate nature. Nowell's deliberate disclosure of the documents to Keir constituted wilful disobedience, as that concept is properly understood, unless she could persuade me that her disclosure was casual, accidental or unintentional. She has failed to discharge that onus. She intended to send the subpoenaed emails to Keir. The disclosure was no accident, nor can it be described as casual. So much is obvious from her second attempt to do so. Her contempt was wilful.

127 Khoury denied that he intended to defy the authority of the court. I reject that denial. His contempt was contumacious in the following sense, which I will explain by beginning with the senses in which it was not contumacious.

128 I do not accept that by his instruction to Nowell, Khoury directly intended to deliberately defy the authority of the court. Deliberate defiance in that form is an aggravating factor when considering penalty, but not a necessary element of the contempt. Defiance of the authority of the court may be found in a specific intention to defy a Harman undertaking where the party making disclosure knows that disclosure is prohibited and has no reasonable belief that it can be excused.

129 That is this case here. Khoury admitted understanding the obligations and responsibilities that are expressed in a Harman undertaking at the time he gave the instruction to Nowell to send the emails:

But you felt the need [to check with Litton about being able to send documents to Keir], did you, before this conversation [with Keir]?---I didn't - I didn't want to send any subpoena documents. There was no way in my mind that I was going to send subpoena documents.

Why is that?---Because it wasn't allowed.

So, you knew, on 30 July, that it wasn't allowed?---Yes.

130 From that admission, it must follow that he understood when he so instructed Nowell that disclosure of documents produced by another person under compulsion of a subpoena was prohibited. There was no basis to conclude that Khoury reasonably believed that the disclosure might be excused.

131 I do not accept that Khoury intended to only instruct Nowell to send the statement of claim, the defamatory email book and the letter from Ramsay Health. The issues around disclosure of the statement of claim became nothing more than a convenient furphy to disguise the deliberate disclosure of the subpoenaed emails once it was realised that Nowell had sent five emails to Keir.

132 Further, I was not persuaded beyond reasonable doubt that Khoury's purpose, when providing the subpoenaed emails to Keir, was to damage Kolt's reputation and standing within the Albury-Wodonga medical community. Another inference that is equally open on my findings is that it was Keir who saw the opportunity to use the documents, in the context of her own issues with Kolt, by forwarding them onto Ramsay Legal for preparation of a show cause notice. I cannot be satisfied beyond reasonable doubt that Khoury and Keir had any common intention. Rather, I find they each had different motives.

133 Khoury intended to demonstrate to Ramsay Health that he had been correct in November 2019, when he asserted that Kolt had breached obligations of confidentiality and disclosed information about Khoury's patients inappropriately. That conduct had contributed to the review of his accreditation and the imposition of restrictions by Ramsay Health and AHPRA. Khoury specifically breached the undertaking intending to show Ramsay Health that he has always been right about Kolt's conduct.

134 Having regard to Khoury's clear evidence of his attitude towards Kolt, both in relation to the events of November 2019 and when he read the subpoenaed emails, his anger and irritation towards Kolt motivated his conduct. I have no doubt that his animus towards Kolt was motivating him on 30 July 2020. While his anger and irritation towards Kolt may have varied in intensity over time, it resurfaced when he became aware of the The Border Mail enquiries and learned what it intended to publish. I am satisfied that he did appreciate that he was inexcusably breaching the undertaking.

135 I was not persuaded to the requisite standard that Khoury appreciated what the consequences of the disclosure might have been for Kolt, nor can I determine that he knew or foresaw how Keir might use the subpoenaed emails. Pursing the vindication of his pre-existing beliefs regarding Kolt is not tantamount to seeking that Kolt's reputation be diminished. In expressing this finding, I have considered the continuing offer made by Nowell to assist Keir with any particular action that Ramsay Health wished to pursue against Kolt with documents that were not subject to the Harman undertaking.[17] For similar reasons, I am not satisfied to the requisite standard, as urged by Kolt and Kirwan, that the subpoenaed emails were provided to Keir as a means of influencing Kolt's willingness to give evidence in this proceeding favourable to Kirwan.

136 Notwithstanding the efforts of counsel for Khoury and Nowell to place a different slant on the instructions Khoury gave to Nowell, I have no doubt that the context of the restrictions on his accreditation being stirred up afresh by the article foreshadowed by The Border Mail, when he had just received notification that they were to be lifted, was a primary motivating factor for Khoury. Nowell clearly understood his instruction and correctly implemented it when she made two attempts to 'send the emails' by forwarding the subpoenaed emails to Keir. The alternative interpretation of these events put by Khoury and Nowell is rejected. It was a false reconstruction of the events I have described designed to ameliorate the seriousness of the contempt.

137 I reject Khoury's evidence that he was unaware of what Nowell had done because he did not read the five emails to Keir that had been copied to him. I am satisfied that he was aware of them and considered that Nowell had properly acted on his instruction to her. The confirmation also provided him some measure of vindication that would assist in his rehabilitation with Ramsay Health in connection with the restrictions on his accreditation. He immediately and actively pursued that issue with Keir the same afternoon.

138 I am not persuaded by the curious circumstances of the later telephone conversation he had with Nowell on 24 August 2020, while she was in Litton's office, where it was contended that he only then became aware of Nowell's disclosure to Ramsay Health. I am unable to make any finding of precisely what occurred between 21 and 24 August 2020 but I am satisfied to the requisite standard that Khoury intended on 30 July 2020 to disclose the emails to Keir and he knew that that had occurred. In any event, to the extent that Khoury and Nowell rely on those events, if believed, as evidence of their realisation that a mistake had been made and their attempts to rectify it, any such discovery would have come too late. Ramsay Health had been informed by Kolt's solicitors of the source of the documents and it would be at their request, not that of Nowell, that the documents were deleted.

139 Khoury and Nowell's subsequent conduct is inconsistent with casual, accidental or unintentional disclosure. Now acting on Litton's advice, they considered it sufficient that Nowell simply inform Keir that the documents had been sent to her in error and could not be used without leave of the court. They took no positive steps to instruct Litton to disclose the breach of the undertaking to any party to the proceeding or the court. They entertained the notion that the consequences of the wrongful disclosure had been ameliorated and could conveniently be swept under the carpet. It was only after Kirwan's solicitors foreshadowed his contempt summons in correspondence that they elected to apply to purge their contempt. Even at that early stage when these contempt proceedings might have been avoided, Khoury and Nowell did not provide full and frank disclosure to Kolt's solicitors when their explanation of inadvertence that they had proffered was questioned.

140 I am satisfied that Ramsay Health would not have sent the show cause notice to Kolt if Nowell had not sent the subpoenaed emails to Keir. Kolt, recognising the source of the information on which the show cause notice was based, caused the withdrawal of that notice by his own efforts. It was not achieved by anything that was done by Khoury or Nowell. Since 24 August 2020, the conduct of Khoury and Nowell has been reactive to Kirwan and Kolt's efforts to remediate the unlawful use of the documents that Kolt was compelled to produce.

141 I will declare that each of Khoury and Nowell be adjudged guilty of contempt of court.

142 I will entertain further submissions from the parties as to whether any, and if so, what penalty should be imposed or other order made.

143 To that end, I direct that by 9 July 2021, the parties shall file and exchange any further affidavit evidence and short outlines of submission on which they intend to rely. Affidavits might address the quantum of any claims for costs.

144 I will fix the applications for further hearing and make formal orders in accordance with these reasons on 15 July 2021.

[1] [2008] HCA 36; (2008) 235 CLR 125 ('Hearne v Street').

[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[3] Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322.

[4] Hearne v Street, 154 [96] (n 1).

[5] Hearne v Street, 157 [105]-[108] (n 1).

[6] Shortly before the trial, Kolt's solicitors put to Keir and Ramsay Health that they were fully aware that the documents founding the show cause notice to Kolt were produced under compulsion and protected from use by the Harman undertaking. It is unnecessary to analysis in any depth the dealings in relation to this allegation, save to state that at trial, counsel appearing for Keir had advised her of her entitlement to claim privilege pursuant to s 128 of the Evidence Act 2008 (Vic). She duly did make that claim and I granted her a certificate under cover of which she gave her evidence.

[7] Hearne v Street, 131-2 [4]-[6], 145 [57], 160-2 [109]-[11] (n 1).

[8] CFMEU v Grocon [2014] VSCA 261; (2014) 47 VR 527, 563 [138] ('CFMEU').

[12] Anderson v Hassett [2007] NSWSC 1310, [6], citing Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 113 ('AMIEU').

[13] As to which CFMEU, 563 [135], 569-70 [171]-[173], 571-2 [178], 577-8 [208] (n 8); Hearne v Street, 170-1 [132] (n 1); Seymour v Migration Agents Registration Authority [2006] FCA 965; (2006) 215 FCR 168, 194-5 [104].

[15] United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, 340; Slea Pty Ltd v Connected Services Pty Ltd [2017] VSC 706; (2017) 53 VR 161, 168 [29].

[16] AMIEU, 107 (n 12). See also James v Robinson [1963] HCA 32; (1963) 109 CLR 593, 602; Attorney General v Times Newspapers Ltd [1974] AC 273, 315; Witham v Holloway (1995) 183 CLR 525, 538-9; BHP v Dagi [1996] VicRp 62; [1996] 2 VR 117, 145, 170.

[17] See above at [94].