Contempt involving Luna Park and Daily Telegraph30-November-2010 Fraud and Insolvency By Mark Streeter
Luna Park Sydney has had a long and sometimes turbulent history in Sydney. The Amusement park is located on the north side of Sydney Harbour at Milsons Point. It’s smiling face has been part of Sydney landscape for much of the park’s life since it opened in 1935. When information gathered for a court case was released to Sydney’s The Daily Telegraph for an article it was considered to be “contempt” – a misuse of the information.
The Facts – Hearne v Street  HCA 36 (6 August 2008)
After being closed for a period of time Luna Park recommenced operations in April 2004. Local residents objected to the noise which was alleged to have included music, loud speaker announcements and mechanical noises from the rides. Proceedings were commenced in the Supreme Court of New South Wales relying on the Tort of nuisance.
In the course of the preparation for hearing the Plaintiffs served affidavits and expert reports. It was alleged that some of this material was then distributed by the Defendants to the Daily Telegraph and used as a basis for an article published on 18 April 2005 and also used in communication to the State Government as part of a lobbying campaign for legislation that was introduced Luna Park Site Amendment (Noise Control) Act 2005 to protect the operators of the Park from complaints of noise and claims for nuisance.
An application was made by the Plaintiffs that the Defendants had improperly used affidavits and expert reports in whole or in part (with all the information contained within them) for a purpose not directly connected with the conduct of the proceedings. It was alleged that this was in breach of an express or alternatively an implied undertaking to the Court.
An application before the primary judge was unsuccessful. The Applicants then appealed to the Court of Appeal who upheld the finding of Contempt. An appeal was then made to the High Court who handed down judgment on 6 August 2008.
The majority judgment in the High Court comprising HAYNE, HEYDON AND CRENNAN JJ found that;
“The Court should not allow any party – whether a party to the proceedings or not, to use documents for any ulterior or alien purpose. Used with knowledge of the circumstances of, and the source of the documentation would be an improper use.”
Comment from Mark Streeter
This case serves as a very useful restatement of the law of contempt. The prosecutor of the contempt were the parties in the litigation. It was a charge of “civil contempt”. In this case the Applicant (one the Plaintiffs in the action) became the “prosecutor”. The burden of proof is the civil burden.
It is necessary to specifically particularise the allegations against each of the Defendants. The Court Rules require the filing and service of a “statement of charge” setting out these details.
Parties, lawyers, their clients, experts and any other person who is provided access to documents obtained in the course of litigation should be very, very careful about how this information and documents are used and be mindful of the constraints imposed upon the parties.
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