Plaintiff v Defendant

2 I will formally declare that Khoury and Nowell ('the contemnors') be adjudged in contempt and I will fine Khoury $5,000. I will impose no fine on Nowell. I will further order that Khoury and Nowell pay Kolt the costs he incurred in responding to a notice to show cause, to be assessed on an indemnity basis, and that they pay one half of the costs incurred by each of Kolt and Kirwan of and incidental to the subpoena and contempt applications, the former to be assessed on a standard basis and the latter to be assessed on an indemnity basis.

4 It is well established that the primary purpose of imposing a penalty for a contempt is to vindicate the due administration of justice.[2] The relevant considerations to be weighed when determining an appropriate penalty for a contempt were collated by J Forrest J after his review of the authorities in R v Witt (No 2).[3]

5 As the Full Court of the Federal Court observed in Kazal:

The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable signs of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.[4]

6 Where a private litigant has established a contempt of court, absent special circumstances, the contemnor will commonly be ordered to pay the litigant's costs on an indemnity basis.[5] I will return to this question.

7 Kirby J observed in Pelechowski[6] that it may be sufficient to vindicate the interests of justice to make a finding of contempt coupled with an order for the payment of costs. Kirby J suggested that such an order may not be sufficient where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority. In such a case Kirby J considered that a fine (and sometimes more) may be needed to vindicate the authority of the court. A custodial sentence may be imposed in a case of contumacious defiance of a court's orders and authority.

8 In my Principal ruling,[7] I explained that deliberate defiance of the authority of the court, an aggravating factor, was absent in this case.

9 It is important, as Kirwan submitted, that I look carefully at the contemnor's state of mind, which can serve to mitigate or aggravate the court's assessment of the seriousness of the conduct in question.

10 Kirwan drew my attention to long standing authority to the effect that there can be no greater contempt than to intimidate a witness before giving evidence.[8] That also is not this case. I was not persuaded beyond reasonable doubt that Khoury either intended to intimidate Kolt into not giving evidence or into changing the evidence that he otherwise would have given. Further, I was not persuaded that Kolt had been so intimidated in either respect.

11 Although the main proceeding is yet to be tried, I am not satisfied that the conduct of the contemnors will have any practical effect on the progress or outcome of the main proceeding. Objectively assessed, however, Khoury's conduct may have carried that consequence. The obligations of a Harman undertaking are significant for the proper administration of justice because protecting the confidentiality of documents produced to a court under compulsion of a subpoena is important to engender community confidence and respect for the administration of justice. Those who are obliged to respond to compulsory process, will more willingly comply in the knowledge that they will not suffer undue or unnecessary interference in their own affairs. This is because the material they produce may only be used for restricted purposes, absent leave of the court. Because the maintenance of this protection is vital, general deterrence is a relevant consideration, deserving of some weight, in setting an appropriate penalty in this case.

12 Khoury admitted understanding the nature of the obligations imposed by a Harman undertaking and he specifically intended to defy those obligations by his disclosures to Ramsay Health Pty Ltd ('Ramsay Health'). However, I was persuaded that his conduct was motivated by an intention to vindicate his earlier complaint about Kolt to Ramsay Health, specifically concerning Kolt's motivations, which he considered to be established by the emails Kolt disclosed under compulsion of subpoena.

13 As explained in the Principal ruling,[9] I was not satisfied that Nowell was complicit in Khoury's true intention, but her conduct in disclosing the emails could not be described as casual or accidental disclosure. Her intention, or motivation, was to discharge the task that Khoury had instructed her to complete. She did so neither knowing of, nor innately understanding, the principles of a Harman undertaking. Accordingly, her contempt is appropriately regarded as significantly less culpable than that of Khoury.

14 The actual consequences of the contempt were identified in my Principal ruling. I was not persuaded beyond reasonable doubt that Khoury either foresaw or intended that Ramsay Health would serve a notice to show cause on Kolt. Although that notice was promptly withdrawn, the contempt was seriously undermining, as I have stated, of the proper administration of justice. I also made findings in my Principal ruling about the reasons or motivation for this conduct. That said it was most immediately Ramsay Health's service of the notice that carried the obvious tendency of intimidating or otherwise interfering with a witness, rather than Khoury's enabling disclosure of Kolt's emails.

15 An indemnity costs order, which I will discuss further in due course, is likely to have a significant deterrent effect both generally and specifically for Khoury and Nowell. Further, having applied to the court to purge their contempt, only to face a contested hearing as to the true nature of their contempt, which they lost, will have provided a powerful lesson for Khoury and Nowell.

16 Khoury and Nowell acknowledged the likelihood of a costs order being made against them. Kirwan assessed his legal costs on the contempt application to be $299,000.07. Kolt's solicitors stated that costs invoiced and incurred as work in progress totalled $230,634.97. Kolt is entitled to and has claimed GST input tax credits amounting, to date, to $18,086.65. The total fees invoiced, incurred, or to be incurred by Kolt and Kirwan, collectively, in respect of this application, was assessed at $529,635.04 (including GST).

17 The primary submission of each of Kolt and Kirwan ('the prosecutors') was that they should have their costs on an indemnity basis. Kirwan sought an order that those costs be fixed and paid immediately, submitting that the court's discretion under r 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), if applicable, should be exercised in favour of an order for the immediate payment of those costs.

18 Kolt and Kirwan submitted, and I accept, that the standard approach in contempt proceedings is for indemnity costs to be awarded to a private prosecutor.[10] Put another way, when a contempt of court is established, a contemnor will, absent special circumstances, be ordered to pay costs on an indemnity basis.

19 In National Australia Bank Limited v Juric (No 2) ('Juric (No 2)'),[11] Gillard J identified the practice in this court stating:

In a proceeding involving a contempt of court, if a charge is made out, the normal and usual rule is to order the contemnor to pay costs on a solicitor/client basis. This is a practice that goes back over many years. In Stan Combe v Trowbridge Urban Council [1910] UKLawRpCh 47; [1910] 2 Ch 190 at 197, the Court ordered the contemnor, who had breached an injunction, to pay costs on a solicitor/client basis.

I also refer to McNair Anderson & Associates v Hinch [1985] VicRp 30; (1985) VR 309, which was also a case involving a breach in injunction. This Court ordered costs on a solicitor/client basis.[12]

20 In the Federal Court of Australia, a similar practice is identified in the cases. In Louis Vuitton Malletier SA v Design Elegance Pty Ltd,[13] Merkel J stated the applicable practice in these terms:

While the power to award costs in all proceedings is discretionary, it is common for costs, and on some occasions indemnity costs, to be awarded in favour of a successful applicant in contempt proceedings: see generally Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350 at 351-353 and Rip Curl International Pty Ltd v Phone Lab Pty Ltd [2004] FCA 1215; (2004) 63 IPR 496 at [53].[14]

On the facts, Merkel J identified special circumstances in the conduct of the applicant prosecutor that resulted in an order that it bear its own costs.[15]

21 In McIntyre v Perkes,[16] the New South Wales Court of Appeal considered whether the primary judge fell into error in failing to observe some rule of law or settled practice which required him to make an order for costs as between solicitor and client or on the trustee basis. Samuels JA stated, with the other members of the court agreeing:

I do not consider that any such rule or practice can be discerned in the Australian cases unless it be on occasions where no penalty by fine or by any other means is imposed. In those cases it is certainly arguable that from time to time courts have made an order for costs on the solicitor and client basis on the footing that this order, which provides an indemnity or near indemnity to the successful moving party, represents sufficient recognition of the court's disapproval of the contempt established.

Samuels JA identified an Australian practice of employing a heavy order for costs as a means of imposing something in the nature of a sanction.[17] Nevertheless orders for costs remain, in essence, exercises of judicial discretion.

22 The practice across these jurisdictions is essentially the same. By describing 'the normal and usual rule' I do not take Gillard J to have denied either that the power to award costs is discretionary or that in special circumstances the practice will give way when other relevant considerations warrant a different discretionary outcome.

23 I am satisfied that there are special circumstances here that warrant departure from the general practice identified in Juric (No 2).

24 The place to start is the Civil Procedure Act 2010 (Vic). Its impact on the principles I have stated must be considered. I must seek to give effect to the overarching purpose in the exercise of any of the court's powers, or in the interpretation of those powers.[18] This includes the costs power.[19] These applications squarely raise the question as to whether the prosecutors have used reasonable endeavours to ensure that the legal costs incurred in connection with this contempt application are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute. They owe an overarching obligation to the court to do so.[20] A failure to observe an overarching obligation would constitute a special circumstance.[21]

25 As I noted in the Principal ruling,[22] the application had unusual features. From an early point, Khoury and Nowell admitted their contempt and contended that it had been purged and they ought to be discharged without further punishment. They offered to pay Kolt's costs assessed on an indemnity basis. By that offer, Kolt would have been compensated for his legal expenses incurred from the service by Ramsey Health of the notice to show cause until it was withdrawn. Pausing here, separately from the issue of the costs of the contempt proceedings, Kolt was, and remains, entitled to be indemnified in respect of the costs of negotiating the withdrawal of the show cause notice. Those 'show cause costs' were materially a loss suffered by Kolt directly as a consequence of the contemptuous conduct. The evidence did not precisely quantify those costs as a separate item within Kolt's costs claim.

26 However, the offer was not accepted and the position adopted by the contemnors was vigorously and successfully contested by the prosecutors, resulting in my finding that Khoury had committed a contumacious contempt while Nowell's contempt was wilful, but not contumacious.

27 It is common experience that a hard fought contest incurs greater legal costs. Khoury and Nowell must accept that the successful challenge to their contention that they had made a full and frank disclosure to the court, warranted a costly assessment of the background facts and the surrounding circumstances of that disclosure. That contest caused the prosecutors to incur the combined claim of $529,635.04. Whatever remains after separately assessing the show cause costs, is the assessment of the combined claim for the costs of the contempt proceedings on an indemnity basis. On the assessments before the court it is a figure well in excess of $500,000. Despite the observation I have just made, this is a surprising and extraordinarily high claim.

28 The prosecutors submitted that the only reason that the costs were so high was because of the lack of candour on the part of the contemnors and their vigorous contest, but self-evidently that contention assumed that separate representation was appropriate, a proposition I will come to in a moment. Either way, it is a submission that cannot be effectively evaluated on the evidence before the court.

29 I am not persuaded that the costs claim is either reasonable or proportionate. Special circumstances exist to decline to follow the usual practice and to assess and allow costs in a lesser sum.

30 First, presently the cap on damages that may be awarded for non-economic loss in defamation proceedings is $432,500. The plaintiff has neither pleaded an economic loss claim nor particularised a claim for Andrews damages[23] but has pleaded an entitlement to aggravated damages.

31 It is a matter of some concern that the costs claimed by the prosecutors exceed the cap on damages applicable in the main proceeding. Although the application of the cap may be affected by the claim for aggravated damages, I am not in a position to assess that issue and do not take it into account. The costs that have been incurred in connection with the contempt application appear to be significantly disproportionate to the dispute in the proceeding.

32 Kolt's summons was filed on 13 November 2020. Khoury and Nowell responded with an application to purge their contempt filed on 27 November 2020 and Kirwan followed up with his summons on 23 December 2020. The hearing proceeded on the basis of five principal affidavits with four deponents being cross‑examined. The hearing took three days and was preceded by an interlocutory application that took a day. The application book was 1520 pages before additions made during the course of the trial. As the Principal ruling shows, at its core the dispute was factual. It was not especially complex, but it was a substantial application in which the ground was thoroughly turned over and ploughed through.

33 At first blush, the costs being claimed do not appear to be reasonably incurred having regard to the complexity or importance of the issue in dispute. That observation appears from the totality of the costs claimed compared with the issues on the application and its conduct. Alternatively, considered severally, the costs claimed by each of the prosecutors still appear very substantial. By including the subpoena fight as a hearing day, I calculate that the prosecutors incurred approximately $130,000 in costs overall for each hearing day.

34 The issue of double representation brings sharp focus to the question whether the costs sought from the contemnors are reasonable and proportionate to the complexity or importance of the issues and the amount in dispute in the proceeding. Careful consideration of the issue by the prosecutors and their advisers was required from the moment Kolt filed and served his application by reason of the s 24 overarching obligation. This obligation prevails over any legal, contractual or other obligation that Kolt, Kirwan and their legal advisers may have.[24] A strongly held expectation of an entitlement to indemnity costs provides little incentive to carefully ensure that costs are not incurred disproportionately. That is particularly so where that expectation may intersect with other motivations affecting the conduct of the prosecutors in the conduct of the application or the proceeding.

35 When the question of costs arose in the subpoena application, I put the parties on notice of this concern stating:

It should be fairly obvious that I am not going to award multiple sets of costs against your client without being persuaded that there is a very good reason to do so, assuming I award any costs against your client.

36 For the reasons that follow, I have not been persuaded that Khoury and Nowell should be required to indemnify the prosecutors for more than a single set of costs and that such costs must be claimed in a sum that is reasonable and proportionate to the complexity or importance of the issues and the amount in dispute in the proceeding.

37 In Van Eeden v Henry,[25] Spigelman CJ observed that the court must be careful to ensure that its proceedings are conducted economically and efficiently, in order to maintain confidence in the administration of justice and to enhance access to justice. The court has a public duty to manage proceedings in such a way as to avoid parties incurring unnecessary costs. This duty to the proper administration of justice is mirrored by the overarching obligation on the parties and their legal advisers to enhance the proper administration of justice, in this particular respect, as required by s 24 of the Civil Procedure Act.

In my opinion when exercising the discretion to award costs the Court should only do so in a way which accepts double representation where the requirements of justice require that to be done. I accept that such cases will arise but, in my opinion, would do so rarely.[26]

39 The court described double representation as a practice that it should not encourage. While there is no legal impediment to separate representation, the court in its discretion can refuse to make an order for costs in favour of a party whose separate representation was unnecessary or inappropriate.

40 The relevant question is whether the requirements of justice on the contempt application required separate representation of Kirwan and Kolt. This question must be answered in the negative.

41 Separate representation will be required where there is a conflict of interest, or at least alternative arguments being advanced by parties with aligned interests. In such cases whether double representation is appropriate will be determined on a case by case basis. That was not this case. The prosecutors contended that they could not know that there would not be any conflict until some point well into the hearing. I reject that submission. Had they turned their minds to it, the prospect of conflict was capable of being, and ought to have been, assessed at the outset. There was no conflict.

42 Prudently, where parties believe that dual, separate representation maybe appropriate the court's leave should be sought in advance, and full costs will generally be awarded, if otherwise appropriate, to separately represented parties who have obtained such leave. This ought to occur at the earliest opportunity. Such an application should, at the latest, have followed on the indication that I gave during the subpoena hearing, but Kolt and Kirwan remained silent.

43 In Statham v Shephard (No 2)[27] the court identified the general disinclination to allow two sets of costs to defendants where there is no possible conflict of interest but noted three provisos. First, if a conflict of interest appears possible, the parties should seek to resolve the possibility of conflict between defendants. Secondly, there could be circumstances where defendants who were united in their opposition to the plaintiff, would be acting reasonably in remaining at arm's length from each other during the course of the application. Thirdly, defendants acting reasonably in maintaining separate representation may still be deprived of part of their costs if there is unreasonable duplication. These principles have been accepted and followed in this court.[28]

44 Applying these provisos, there was no evidence of any co-operation or negotiation between Kolt and Kirwan to avoid or resolve any circumstance that may have required separate representation. I am not persuaded that the defendants were acting reasonably by remaining at arm's length, because of the possible relationship of litigant and witness. Given their prior relationship, as evidenced by the subject emails, any such suggestion would be fatuous. The third issue of unreasonable duplication of specific tasks is one to be determined in an assessment. Absent direct negotiations between them, the prosecutors were constrained to argue that separate representation was necessary as a matter of principle. These submissions were not persuasive.

45 The prosecutors submitted that the parties had exercised care to avoid unnecessary duplication. They suggested that only one application book was prepared but I am satisfied that was a consequence of the fact that the prosecutors' applications were substantially the same. They were particularised in the same way and turned on the same facts and legal principles. It was only on the question of costs that their submissions were not mutually adopted or advanced.

46 The prosecutors suggested that cross‑examination of witnesses was carefully managed to avoid duplication. In the relevant sense any advantage was illusory. Counsel for both prosecutors were present throughout the whole hearing. The only costs saving in that context may have been avoidance of unnecessary lengthy cross‑examination. The court was mindful to avoid that consequence in any event.

47 Kolt claimed he was the most directly affected because the breach of the undertaking led directly to a threat to his professional reputation and accreditation, thereby engaging his professional interests. But that was only briefly true. Ramsay Health promptly withdrew its show cause notice when Kolt's solicitors demanded that they do so. Kolt then issued his contempt summons that was promptly followed by a summons by which Khoury and Nowell sought to purge their contempt. Kolt contended that Kirwan's interests were different. Kirwan's interest was the possible impact of Khoury's conduct on the primary underlying defamation proceeding. There was no evidence before me that Kolt would not give evidence for Kirwan at the trial or that he would, for any reason, change his evidence as a result of Khoury's conduct. I was persuaded that Kolt and Kirwan were in the same camp and the contention that they had distinct interests was illusory.

48 Alternatively, Kolt submitted that if only one set of costs is to be ordered that he, not Kirwan, ought to recover the costs of his contempt summons because it was filed first and because his interests were most directly affected.

49 I find this submission unattractive because Kolt's personal interests did not remain directly affected for very long and Kirwan's personal interests never appeared to actually be threatened. What remained was the court's interest in determining the consequences for Khoury and Nowell from their contempt which was an interest in the protection and enhancement of the proper administration of justice. It was quite proper for Kolt and Kirwan to bring that complaint to the court, but that aspect of the proper administration of justice needed to be balanced against competing aspects of the interests of justice described by Spigelman CJ in Van Eeden v Henry.[29] From this perspective, I cannot reconcile the quantum of the costs claimed for enforcement of the contempt as justified in the interests of the proper administration of justice. The public interest in a private prosecution for contempt is properly recognised by awarding reasonable and proportionate costs to the applicant. The early satisfaction of personal interests left only the public interest which was amply represented by a single legal team.

50 The combined claim, on an indemnity basis, of $529,635.04 on an interlocutory application occupying four days (including the subpoena dispute) is redolent of unreasonable conduct. It was not reasonable for Kirwan and Kolt not to agree a protocol to share the costs of the application. No impediment to doing so was revealed by the evidence. Being in the same camp, and by reference to the circumstances in issue in the defamation proceeding, Kolt and Kirwan or one of them, possibly sought to exploit the rule of practice that a private prosecutor recovers indemnity costs to achieve a forensic advantage by maximising the financial pressure on the plaintiff. It is neither possible nor necessary that I make any finding in that regard and I say no more about that.

51 Finally on costs, I am satisfied that, separately, Kolt incurred the show cause costs, wasted his time and likely suffered some personal distress in addressing the issues that followed on the show cause notice. I will order that Khoury and Nowell pay Kolt's costs of and incidental to the show cause notice from the time it was received until the time it was withdrawn, such costs to be assessed on an indemnity basis.

52 The indemnity costs estimates submitted by the prosecutors included the subpoena dispute, and the rule of practice concerning assessment on an indemnity basis does not extend to subpoena disputes. The assessment of all costs of and incidental to the subpoena dispute should be on a standard basis, and in accordance with the directions in the following paragraph. The contemnors shall pay Kolt and Kirwan one half of their assessed costs.

53 I will order that Khoury and Nowell pay one half of the costs of each of Kolt and Kirwan, of and incidental to the three summonses by which the contempt application was constituted, filed respectively on 13 November 2020, 27 November 2020 and 23 December 2020, exclusive of all costs dealt with in the preceding two paragraphs, to be assessed on an indemnity basis. I further direct that such assessment be jointly conducted and the assessment of all duplicated items of work be limited to the sum that would properly be allowed had Kolt and Kirwan been jointly represented by a single legal team.

54 Having regard to the principles stated by the Court of Appeal in Setka v Abbott (No 2),[30] I will order that such costs may be taxed immediately. This application was quite discrete from the issues in the proceeding and distinct from the type of interlocutory applications that come before the courts in defamation proceedings. Further, the contemnors have plainly engaged in unsatisfactory conduct that was both unreasonable and reprehensible.

55 There are ameliorating factors that I have taken into account in the contemnor's favour.

56 Neither Khoury nor Nowell has any prior convictions or findings of guilt raised against them.

57 Khoury and Nowell tendered 10 affidavits in support of their submissions that Khoury is otherwise of outstanding character and has provided, and continues to provide, significant service to the community through his work as a surgeon, mentor and educator. I accept, as his counsel submitted, that he has earned the friendship, trust, and respect of a broad circle of members of the community, medical and otherwise, in the Albury Wodonga region. I accept that, notwithstanding some concerns expressed in my Principal ruling, Khoury's conduct was out of character and that he has confronted the proper assessment of his conduct in his community and amongst his friendship and professional circles. Those affidavits engender confidence that Khoury understands and appreciates the importance of the proper administration of justice and will ensure that he does not again commit an act of contempt. Nowell is described as honest, extraverted and driven. I have confidence that she has learnt a hard lesson well and is unlikely to ever be found again in contempt of a court.

58 I accept that one consequence of Khoury's conduct is that it carries a possibility of affecting his ability to practice his profession. The circumstances of the contempt are quite peripheral to professional conduct as an orthopaedic surgeon, but it is a matter for others to assess whether there truly is any impact on his entitlement to continue to practice his profession. To the extent that any professional position held by Khoury may be terminated should he be convicted of contempt, which seems unlikely, I do not record a conviction. If my views be relevant, I simply emphasise that the circumstances I have considered reflect on character and conduct in the context of a hard fought legal dispute, not on professional skill and demeanour in any medical context. I will declare that each of the contemnors have committed a described contempt. I have, in these reasons and the Principal ruling, made clear my assessment of the nature of the contempt, and Khoury's conduct and character. Others can debate the semantic significance of labels. In taking this course I have considered what I said in Deputy Commissioner of Taxation v Gashi (No 3),[31] counsel's submissions, and the context of the present applications.

59 I also accept that these proceedings have attracted media scrutiny and that this publicity caused distress to Khoury and Nowell.

60 I am satisfied that this application has had an extremely sobering impact on both Khoury and Nowell, each of whom now has a sophisticated understanding of the purposes and obligations of a Harmon undertaking. Specific deterrence is of limited relevance as an objective in fixing penalty in this case. They may be considered rehabilitated.

61 A further matter of some significance is that Khoury and Nowell sought to purge their contempt and in that context acknowledged their wrongdoing and expressed genuine contrition. I was not persuaded that the inadequacy of their apology that arose from failure to appreciate the full circumstances of the contempt nullified the ameliorating effect of their contrition.

62 Fault was promptly acknowledged in correspondence and the fact of contempt was never denied. Khoury promptly offered to pay Kolt's costs on an indemnity basis and to submit to a court finding that he had committed a contempt. Beyond the apology communicated in solicitors' correspondence, I am satisfied that Khoury expressed genuine contrition in the apology he proffered to the court. He now fully appreciates the grave mistake that he made and maintains his contrition with that understanding. I accept that he is likely to properly respect the due administration of justice.

63 Nowell proffered an unreserved apology and expressed regret for her conduct. I accept her contrition as genuine.

64 The apologies and evident contrition are significant ameliorating factors that I also take into account in their favour.

65 It is necessary that I impose a penalty that vindicates the court's authority and re‑establishes appropriately the proper administration of justice. As earlier noted, general deterrence is a relevant objective. It is necessary that persons granted access to the private documents of others through the court's compulsory processes respect the confidences that the law requires and be strongly discouraged from breaching such confidences. Because I did not find that Khoury directly intended to deliberately defy the court's authority and that he did not provide the subpoenaed documents to Ramsay Health for the purpose of influencing Dr Kolt as a potential witness in the proceeding, a custodial sentence is not warranted, but general deterrence requires that I impose a financial penalty.

66 I am satisfied that Khoury has the means to pay a fine. I do not propose to impose on Nowell any additional penalty beyond the declaration and the costs orders.

67 Finally, the penalties that I impose must have regard to the principles of totality and be just and appropriate in all of the circumstances.[32] In this context, I have given significant weight to the financial impact and burden of the costs orders.

68 I should record that on 9 July 2021, just before the hearing on the question of penalty, Kolt filed and served a summons seeking relief pursuant to s 29 of the Civil Procedure Act against Khoury, Nowell and Rebecca Ann Litton. That summons was not dealt with during the penalty hearing and I gave directions for trial preparation that follow on from the publication of these reasons.

69 The declarations and orders I will make are that:

(1) The Court declares that Elie Khoury, being a party to litigation, and Jessica Nowell committed contempt of court by disclosing to a non-party to that litigation documents and information that was produced to the Court by compulsion of a subpoena by Jeremy Kolt, such disclosure being made without the leave of the court and prior to reception of such material into evidence.

(3) Elie Khoury shall pay the fine to the Prothonotary of the Supreme Court of Victoria within fourteen days.

(4) Elie Khoury and Jessica Nowell pay Jeremy Kolt his costs, to be assessed on an indemnity basis, incurred between the service of the show cause notice and its withdrawal.

(5) Elie Khoury and Jessica Nowell pay Jeremy Kolt and David Kirwan one half of their costs of and incidental to the plaintiff's summons dated 25 February 2021, as reserved by my orders of 31 March 2021 to be assessed on a standard basis.

(6) Elie Khoury and Jessica Nowell pay Jeremy Kolt and David Kirwan one half of their costs of and incidental to each of the three summonses by which the contempt application was constituted, filed respectively on 13 November 2020, 27 November 2020 and 23 December 2020, to be assessed on an indemnity basis and in accordance with these reasons, excluding all costs ordered by paragraphs 4 and 5 of the order.

(7) Costs awarded by this order may be taxed immediately.

[1] Khoury v Kirwan (No 4) [2021] VSC 333 ('Principal ruling').

[2] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 484 [147] ('Pelechowski'); Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107; Re Colina: Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, 429 [112]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375, 388 [41].

[3] [2016] VSC 142, [92]-[93]. See also Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 265 [5] ('Gashi (No 3)'); DPP v Johnson [2002] VSC 583, [59].

[4] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90, 133 [103] ('Kazal').

[5] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 270-1 [20]; National Australia Bank Ltd v Juric (No 2) [2001] VSC 398, [67], [70].

[6] Pelechowski [1999] HCA 19; (1999) 198 CLR 435, 485 [148].

[7] Principal ruling [2021] VSC 333, [128].

[8] Kazal [2017] FCAFC 111; (2017) 256 FCR 90, 132-3.

[10] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 270-1 [20]; Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24, 58 [160].

[11] [2001] VSC 398.

[13] [2006] FCA 83.

[14] [2006] FCA 83; (2006) 149 FCR 494, 502 [30].

[16] (1988) 15 NSWLR 417, 426-7.

[17] Ibid 427, citing C J Miller_, Contempt of Court_ (P. Elek, 1976) 264; N Lowe and G Borrie, Borrie and Lowe's Law of Contempt (Butterworths, 1983) 323; Stancomb v Trowbridge Urban District Council [1910] UKLawRpCh 47; [1910] 2 Ch 190.

[18] Civil Procedure Act 2010 (Vic) s 8.

[19] Supreme Court Act 1986 (Vic) s 24.

[20] Civil Procedure Act 2010 (Vic) s 24.

[21] Civil Procedure Act 2010 (Vic) ss 28, 29(1)(a)-(b).

[22] Principal ruling [2021] VSC 333.

[23] See Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 235 [23], 258-9 [110]-[111].

[24] Civil Procedure Act 2010 (Vic) s 12.

[25] [2005] NSWCA 14; (2005) 62 NSWLR 301, 302-3 [31].

[27] (1974) 23 FLR 244, 246-7.

[28] Talacko v Talacko [2017] VSC 804, [77]-[80].

[29] [2005] NSWCA 14; (2005) 62 NSWLR 301.

[30] [2013] VSCA 376. See also Dale v Clayton Utz (No 3) [2013] VSC 593; Trkulja v Dobrijevic (No 3) [2014] VSC 614.

[31] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262.

[32] Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59, 63; CC Containers Pty Ltd v Lee (No 9) [2015] VSC 595, [30].