MINERAL RESOURCES LTD -v- DESTEC PTY LTD [2026] WASC 283

[2026] WASC 283 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : MINERAL RESOURCES LTD -v- DESTEC PTY LTD [No 7] [2026] WASC 283 CORAM : HILL J HEARD : 20 JANUARY 2026 & 25 MARCH 2026; FINAL WRITTEN SUBMISSIONS FILED 26 MAY 2026 DELIVERED : 14 JULY 2026 FILE NO/S : CIV 1465 of 2020 BETWEEN : MINERAL RESOURCES LTD First Plaintiff CRUSHING SERVICES INTERNATIONAL PTY LTD Second Plaintiff AND DESTEC PTY LTD First Defendant STEPHEN LESLIE WYATT Second Defendant FILE NO/S : CIV 1466 of 2020 BETWEEN : CRUSHING SERVICES INTERNATIONAL PTY LTD First Plaintiff MINERAL RESOURCES LTD Second Plaintiff -- 1 of 19 -- [2026] WASC 283 Page 2 AND STEPHEN LESLIE WYATT Defendant Catchwords: Application by plaintiffs for committal of defendants for contempt of court - Breach of Harman undertaking by publication on first defendant's website of videos obtained from plaintiffs in these proceedings - Application by defendants to purge contempt - Whether defendants have purged their contempt - Whether there has been full and frank disclosure of circumstances of breach - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 55 r 4, r 7, r 8 Result: Defendants have admitted contempt of court Finding that each defendant is guilty of civil contempt Defendants' application to purge their contempt dismissed Category: B -- 2 of 19 -- [2026] WASC 283 Page 3 Representation: CIV 1465 of 2020 Counsel: First Plaintiff : S Penglis SC & D Banda Second Plaintiff : S Penglis SC & D Banda First Defendant : L N Firios Second Defendant : L N Firios Solicitors: First Plaintiff : Bennett Second Plaintiff : Bennett First Defendant : HFW Australia (Perth) Second Defendant : HFW Australia (Perth) CIV 1466 of 2020 Counsel: First Plaintiff : S Penglis SC & D Banda Second Plaintiff : S Penglis SC & D Banda Defendant : L N Firios Solicitors: First Plaintiff : Bennett Second Plaintiff : Bennett Defendant : HFW Australia (Perth) -- 3 of 19 -- [2026] WASC 283 Page 4 Cases referred to in decision: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 Kelly v Hilton [No 6] [2025] WASC 43 Keogh v Bartlett [2026] WASC 166 Khoury v Kirwan (No 4) [2021] VSC 333 Mineral Resources Ltd v Destec Pty Ltd [2024] WASC 449 Slea Pty Ltd v Connected Services Pty Ltd [2017] VSC 706; (2017) 53 VR 161 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Witham v Holloway (1995) 183 CLR 525 Zaghoul v Woodside Energy Ltd [2018] WASCA 191 -- 4 of 19 -- [2026] WASC 283 HILL J Page 5 HILL J: 1 On 10 September 2025, the plaintiffs filed an application for the defendants to be found guilty of a contempt of court. The contempt arose from the defendants' publication on the first defendant (Destec)'s website from November 2024 to 18 July 2025 of two videos obtained by way of informal discovery in these proceedings. The plaintiffs sought orders pursuant to O 55 r 4 of the Rules of the Supreme Court 1971 (WA) (Rules) that the defendants pay a fine for the contempt or that they be penalised in some other way determined by the court, and for the defendants to pay the plaintiffs' costs of their application on an indemnity basis. 2 The defendants accept the publication of the two videos on Destec's website between November 2024 and 13 June 2025 was a breach of the Harman undertaking1 and, as a result, constituted a civil contempt of court.2 On 1 October 2025, the defendants filed an application for orders to purge their contempt and to discharge them from any penalty resulting from their breach. An amended application was filed on 24 October 2025. In support of their application, the defendants read three affidavits, being: (a) an affidavit of Peter Edward Sadler, a partner of HFW Australia (the defendants' then solicitors), filed 1 October 2025; (b) an affidavit of Stephen Leslie Wyatt, the second defendant, filed 1 October 2025; and (c) an affidavit of Morne van Zyl, a project director employed by Destec, filed 24 October 2025. 3 The defendants' application was opposed by the plaintiffs, who read two affidavits of Andrew James Filing, a solicitor employed by Bennett, the plaintiffs' solicitors, filed on 12 June and 10 September 2025. 4 Both applications were listed for hearing before me on 20 January 2026. At this hearing, Mr Wyatt was cross-examined by senior counsel for the plaintiffs. At the conclusion of the cross-examination, the plaintiffs sought and were granted an adjournment of the hearing to enable them to review the transcript of Mr Wyatt's evidence prior to delivering their closing submissions on the applications. The 1 Harman v Secretary of State for the Home Department [1983] 1 AC 280. 2 Defendants' outline of submissions filed 24 October 2025 [2]. -- 5 of 19 -- [2026] WASC 283 HILL J Page 6 applications were adjourned until 25 March 2026 and orders made for the parties to file written closing submissions. It was agreed that the question as to what penalty should be imposed on the defendants in the event their application to purge the contempt was dismissed would be the subject of a separate hearing. At the hearing on 25 March 2026, after hearing closing submissions from each of the parties, I reserved my decision. 5 On 14 May 2026, at the request of the parties, orders were made to enable the parties to file short supplementary submissions addressing Cobby J's decision in Keogh v Bartlett,3 which was delivered after I had reserved my decision. On 21 May 2026, orders were made for the parties to file responsive supplementary submissions, which were then filed on 26 May 2026. 6 For the reasons that follow, I have concluded that in all of the circumstances of this matter, the defendants' application should be dismissed. Factual background 7 These proceedings concern, among other matters, allegations that the defendants copied certain features of the first plaintiff's crushing and screening plant and replicated these features in Destec's crushing and screening plant, including one installed at the Rio Tinto Gudai-Darri mine (Destec Plant). 8 On 16 September 2022, a subpoena was issued to Wayne Horne by the court at the request of the defendants. The subpoena required the production of photographs and video recordings of the transportation of the Destec Plant from Destec's workshop in Canning Vale to the Shire of Ashburton in or around September 2021.4 9 After conferral between the parties in relation to the subpoena,5 the plaintiffs gave informal discovery of this material on 20 October and 30 November 2022. The materials informally discovered by the plaintiffs included two videos with bates numbers 'MIN.1465.001.0001' and 'MIN.1465.002.0007' (Videos) which showed the Destec Plant 3 Keogh v Bartlett [2026] WASC 166. 4 Affidavit of Andrew James Filing filed 10 September 2025 [6], 'AJF-9'. 5 Exhibit A. -- 6 of 19 -- [2026] WASC 283 HILL J Page 7 being transported on a public road by road train in or around September 2021.6 10 Mr Wyatt received copies of the Videos from the defendants' solicitors on 22 October 2022.7 11 On 27 April 2023, the defendants applied to strike out the plaintiffs' second amended consolidated statement of claim. In support of the application, the defendants filed an affidavit of Mr Sadler on 2 May 2023, exhibiting a USB drive which included the Videos. 12 The defendants' strike-out application was listed for hearing on 29 June 2023. At the hearing, the plaintiffs objected to Mr Sadler's affidavit being read in support of the application. During the hearing, several videos were played to the court, although these did not include the Videos. 13 On 29 November 2024, I delivered my reasons for decision on the defendants' application. In those reasons, I indicated that, ultimately, it had been unnecessary to rule on the admissibility of the affidavits filed in support of the defendants' strike out application (including Mr Sadler's affidavit) for the purposes of determining the application.8 It is now not disputed that as at June 2023, because Mr Sadler's affidavit was not read, the Videos remained subject to the Harman undertaking. 14 Subsequently, the Videos were exhibited to an affidavit of Mr Filing filed 12 June 2025, which was read at a hearing on 13 June 2025.9 There is also no dispute that, as a result, from 13 June 2025, the Videos were no longer the subject of the Harman undertaking. 15 In November 2024, Mr van Zyl updated Destec's website to include more recent photographs and videos of Destec's work. As part of this process, Mr van Zyl obtained access to Mr Wyatt's computer so that he could select images and videos to upload to Destec's website. Mr van Zyl went through the folders on Mr Wyatt's computer and selected a number of photographs and videos, including the Videos, which were then uploaded to Destec's website. Mr van Zyl was not 6 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [9] - [11]. 7 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [12]. 8 Mineral Resources Ltd v Destec Pty Ltd [2024] WASC 449 [38]. 9 ts 467 - 468. -- 7 of 19 -- [2026] WASC 283 HILL J Page 8 aware the Videos had been obtained from the plaintiffs in these proceedings or that they were subject to the Harman undertaking.10 16 On 18 July 2025, following an exchange of correspondence between the parties' solicitors, the Videos were removed from Destec's website.11 Legal principles 17 The underlying rationale of the court's power to find a person in contempt and to deal with the person for that contempt is to uphold and protect the effective administration of justice,12 and to ensure the integrity of proceedings.13 18 A contempt proceeding is a civil hearing and is governed by the civil procedure rules of the court.14 The onus of establishing the conduct amounting to the alleged contempt is on the person alleging the contempt. This conduct must be established beyond reasonable doubt on admissible evidence.15 19 A breach of a court order or undertaking will constitute a civil contempt unless the breach was contumacious.16 A breach will be contumacious where the disobedience or contravention involves deliberate defiance of the order or undertaking.17 20 The legal principles regarding what is commonly known as the Harman undertaking are not in dispute. In Hearne v Street, the High Court described the undertaking, which is a substantive legal obligation, in the following terms:18 Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. 10 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [12] - [18]; Affidavit of Morne Van Zyl filed 1 October 2025 [5] - [9]. 11 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [18]. 12 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107. 13 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [41]. 14 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [40]; Witham v Holloway (1995) 183 CLR 525, 534. 15 Witham v Holloway (535). 16 Witham v Holloway (530). 17 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (108 - 109). 18 Hearne v Street (2008) 235 CLR 125 [96] (Hayne, Heydon & Crennan JJ); see also [106] - [108]. -- 8 of 19 -- [2026] WASC 283 HILL J Page 9 21 The Harman undertaking extends to documents informally discovered by a party,19 and is an obligation owed to the court. This is why a breach of the Harman undertaking can constitute a contempt of court.20 22 In order for a person to be held liable for contempt arising from a breach of the Harman undertaking, it is not necessary for the alleged contemnor to have knowledge of the implied undertaking or understood the legal consequences of their conduct (although a lack of knowledge may be relevant to penalty).21 It is only necessary to demonstrate that: (a) the documents or information were provided to the alleged contemnor pursuant to the compulsive processes of the court; and (b) the alleged contemnor provided the documents or information to third parties for a purpose other than the litigation in the substantive proceedings. 23 If these are demonstrated, the onus falls on the alleged contemnor to demonstrate the disclosure was casual, accidental or unintentional.22 24 This court's jurisdiction to punish a contemnor for contempt is conferred by s 16(1)(a) of the Supreme Court Act 1935 (WA) and O 55 of the Rules. Order 55 r 7 and r 8 of the Rules specifically provide that: 7. Punishing contemnors (1) The Court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine. (2) When the Court imposes a fine, it may order that the contemnor be imprisoned, or further imprisoned, until the fine is paid. (3) Where the contemnor is a corporation the Court may punish contempt of court by sequestration, or fine or both. (4) An order of committal may be in Form No. 66. 19 Zaghoul v Woodside Energy Ltd [2018] WASCA 191 [18] citing with approval Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 [9] - [18]. 20 Hearne v Street [106]. 21 Hearne v Street [112]. 22 Khoury v Kirwan (No 4) [2021] VSC 333 [108]. -- 9 of 19 -- [2026] WASC 283 HILL J Page 10 8. Execution of committal order may be suspended The Court making an order of committal may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as the Court thinks fit. 25 In this case, the defendants have admitted the contempt and filed an application to be purged of the contempt. 26 An issue arose between the parties in the supplementary submissions filed after I had reserved my decision as to the onus of proof on the defendants' application. The defendants submitted that it was necessary for all facts adverse to them to be established beyond a reasonable doubt. I do not accept this submission. The application to purge the admitted contempt is the defendants' application. On this basis, I consider the defendants bear the onus of establishing the facts they contend for on the balance of probabilities. However, where the plaintiffs say the court should make additional findings of fact, as was accepted by senior counsel for the plaintiffs, these matters must be proved beyond a reasonable doubt. In determining the defendants' application, I have proceeded on this basis. 27 Ordinarily, various steps are required in order for a party to purge its contempt. These include expressing a genuine and unreserved apology; offering to pay compensation for any damages suffered; and offering to pay the costs of the contempt proceedings, usually on an indemnity basis.23 28 The plaintiffs placed significant reliance on the statement of Dixon J in Khoury v Kirwan (No 4) that:24 On any such application, the court is entitled to expect a full and frank disclosure of the circumstances giving rise to the contempt. However, if the contemnors seek to purge what they contend is a casual, accidental or unintentional disclosure, that must, in fact, be the case. 29 Counsel for the defendants drew attention to the authorities relied upon by his Honour for this statement which did not expand the requirements from those summarised at [27] above.25 While I accept this submission, this does not mean the assessment of whether there has 23 Kelly v Hilton [No 6] [2025] WASC 43 [19]. 24 Khoury v Kirwan (No 4) [112]. 25 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 [29]. -- 10 of 19 -- [2026] WASC 283 HILL J Page 11 been full and frank disclosure by a contemnor of the circumstances giving rise to the contempt is irrelevant. In my view, this question is relevant to the assessment of whether there has been a genuine and unreserved apology for the acts which constitute the contempt. 30 Even where one or more of these steps are taken, this does not mean that the contempt is automatically purged. It is a matter for the court to consider whether the contempt has been purged and whether the contemnor should be discharged without further penalty. The question of whether a contempt has been purged will depend upon all of the circumstances of the case. The court may consider that additional steps are required to purge the contempt, or that the circumstances require the imposition of an additional penalty on the contemnor on the basis that the contemnor has not suffered a punishment which is proportionate to the contempt. 31 There is a significant degree of overlap between the facts and circumstances relevant to the imposition of a penalty on a contemnor and the consideration of whether the contemnor has purged their contempt. This is unsurprising given the task in each case involves a consideration of the contempt in the context of its circumstances, including matters personal to the contemnor. In addition to the factors referred to above, in the context of determining the appropriate penalty for a contempt, it may also be relevant to consider the extent of the steps taken by the contemnor to purge the contempt.26 Have the defendants purged their contempt? 32 The primary issue that arose on the defendants' application was whether the defendants had sufficiently purged the admitted contempt to the extent that no further penalty should be imposed other than payment of the plaintiffs' costs of the application to be taxed if not agreed. 33 Senior counsel for the plaintiffs submitted the defendants' application should be dismissed for two main reasons. First, the defendants had not demonstrated genuine remorse for the breach of the Harman undertaking. Second, the defendants had not provided a full and frank disclosure of the circumstances giving rise to the contempt, and Mr Wyatt's initial disclosure was false, alternatively seriously misleading. Specifically, the plaintiffs contended the defendants had not clearly stated the extent of their knowledge regarding the existence 26 Kelly v Hilton [No 6] [21]. -- 11 of 19 -- [2026] WASC 283 HILL J Page 12 of the Harman undertaking and the consequences of breaching this undertaking. The plaintiffs submitted that in circumstances where Mr Wyatt was aware the Videos had been obtained from the plaintiffs in about mid-December 2024, no reasonable explanation had been proffered as to why the Videos remained on Destec's website until July 2025. 34 The defendants did not accept the plaintiffs' criticisms of Mr Wyatt's evidence, nor the contention that they had failed to provide a full explanation of the relevant circumstances that led to the breach of the Harman undertaking. 35 Counsel for the defendants emphasised four matters in support of their application. First, the subject matter of the Videos was not inherently commercially sensitive or confidential. Second, Mr Wyatt's evidence, both on affidavit and under cross examination, was consistent with the position that the breach of the Harman undertaking initially arose from carelessness and neglect in the storage and handling of the Videos.27 Third, there was a clear and reasonable explanation why the Videos remained on Destec's website until July 2025, namely that Mr Wyatt did not realise this was a contempt of court until mid-July 2025, when his solicitors became aware the Videos had not been played in open court at the hearing in 2023. The Videos were removed a short time after this. Fourth, Mr Wyatt has admitted the contempt and given an apology. 36 The defendants submitted the consequences of the contempt were relatively limited, and that this was an isolated event in the long history of litigation between the parties. 37 In order to explain the conclusion I have reached on the defendants' application, it is necessary to consider in some detail the evidence of the circumstances that led to the Videos being uploaded to Destec's website and not being removed until 18 July 2025. 38 At the hearing on 20 January 2026, Mr Wyatt was cross-examined at some length by senior counsel for the plaintiffs. In closing submissions, the plaintiffs submitted that Mr Wyatt was an unreliable witness and should not be accepted as a witness of truth. The defendants rejected this submission and contended that Mr Wyatt presented as a witness of truth. I consider that during his cross-examination, Mr Wyatt answered the questions asked of him 27 ts 508. -- 12 of 19 -- [2026] WASC 283 HILL J Page 13 directly and succinctly, although I accept on occasions, he expressed a degree of frustration with the questions asked of him by senior counsel for the plaintiffs. Mr Wyatt also made appropriate concessions, including that he realised on detailed review of Destec's website in December 2024 that the videos that had been uploaded to the website had been obtained from the plaintiffs, and that this was not dealt with in his affidavit. These concessions were clearly against his interests (as well as the interests of Destec). For these primary reasons, I accept the defendants' submission that Mr Wyatt was, in general, a truthful witness. 39 Neither Mr Sadler nor Mr van Zyl were cross-examined. I accept their evidence in its entirety. 40 In his affidavit, Mr Wyatt deposed that he had 'generally been aware' of the Harman undertaking in December 2024.28 When he reviewed the draft website prepared by Mr van Zyl, it did not occur to him that the videos on the draft website were the Videos obtained from the plaintiffs in these proceedings.29 His evidence was that because the Videos showed the Destec Plant being transported on a public road, he 'did not register' the Videos were subject to the Harman undertaking.30 41 In cross-examination, Mr Wyatt explained that he originally saw the draft website when he was standing behind Mr van Zyl at his desk. At this time, it did not occur to him these videos had been obtained from the plaintiffs by way of informal discovery almost two years earlier.31 Mr Wyatt was aware the depiction of the Destec Plant in the Videos had not been commissioned by him or Destec, but explained he had commissioned videos of the Destec Plant during this same transit.32 42 After his initial review of the website, a few days or a week later, Mr Wyatt undertook a more detailed review of the website. In cross-examination, Mr Wyatt stated it was at this time, in December 2024, that it occurred to him the Videos had been obtained from the plaintiffs in these proceedings and that he may 'potentially have a problem'.33 Having become aware of the potential issue, he 'then made comments to [his] lawyer and got some advice, and he never instructed 28 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [20]. 29 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [15]. 30 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [23]. 31 ts 507. 32 ts 504 - 506. 33 ts 509, 512 - 513. -- 13 of 19 -- [2026] WASC 283 HILL J Page 14 me to take them down'.34 Mr Wyatt explained that he contacted Mr Sadler of HFW, who was acting for Destec at that time, about two to four days after recognising he 'potentially had a problem'.35 When asked what legal advice he had received from Mr Sadler, after taking advice from counsel and his solicitors, Mr Wyatt declined to waive privilege and did not answer the question.36 There is no dispute that after this conversation, the Videos remained on the Destec website. 43 Mr Wyatt accepted he had not referred to these events in his affidavit filed in support of the application. His explanation was that the affidavit 'was put together to make an apology to the court, to the system, to MRL and yourself, that I had made some errors in the way that I stored the photographs, made access to them. That's why I put this together, and that was the intent of it'.37 Mr Wyatt accepted the question of when he first became aware that the Videos were obtained from the plaintiffs was important. However, Mr Wyatt gave contradictory evidence as to whether he accepted his affidavit gave the impression that he did not realise the Videos had been obtained from the plaintiffs until July 2025. He initially accepted this was the case,38 before denying it,39 and then saying the affidavit was not deliberately misleading,40 but rather was an oversight.41 44 On 18 June 2025, the plaintiffs' solicitors wrote to HFW raising the plaintiffs' concerns about the breach of the Harman undertaking. The letter also contended the use of the Videos was a breach of copyright.42 Mr Wyatt accepted he received a copy of this letter at about this time. In response to that letter on 26 June 2025, the defendants' solicitors denied the Videos were subject to the Harman obligation and contended the Videos had been played in open court on 29 June 2023 and were annexed to an affidavit of Mr Filing on 12 June 2025, which was read without objection at the hearing on 13 June 2025.43 I accept that this letter reflected Mr Sadler's honestly held (but mistaken) belief at that time. 34 ts 508. 35 ts 512. 36 ts 524. 37 ts 509 - 510. 38 ts 511. 39 ts 512. 40 ts 512. 41 ts 511. 42 ts 515; Affidavit of Andrew James Filing filed 10 September 2025, 'AJF-14'. 43 Affidavit of Andrew James Filing filed 10 September 2025, 'AJF-15'. -- 14 of 19 -- [2026] WASC 283 HILL J Page 15 45 By letter dated 10 July 2025, the plaintiffs' solicitors denied the Videos had been played in open court on 29 June 2023 and maintained the Videos were subject to the Harman obligation until 13 June 2025. After receiving this letter, Mr Sadler reviewed the transcript of the hearing on 29 June 2023 as well as the reasons for decision published by the court in 2024 and concluded that his recollection of events (as set out in the letter of 26 June 2025) was incorrect. I accept Mr Sadler's evidence that it was only after receipt of the letter of 10 July 2025 that he became aware the Videos had not been played in open court in June 2023. 46 On or about 17 or 18 July 2025, after receiving a copy from his solicitors of the letter from the plaintiffs' solicitors dated 10 July 2025, Mr Wyatt concluded the use of the Videos was a breach of the Harman undertaking. 47 On 18 July 2025, Mr Wyatt gave instructions for the Videos to be removed from Destec's website.44 48 On 25 July 2025, the solicitors for the defendants wrote to the plaintiffs' solicitors (in a letter which Mr Wyatt approved) informing them the Videos had been taken down 'to avoid the time and cost of satellite disputes regarding the use of documents'.45 49 Mr Wyatt accepted full responsibility for the breach of the Harman undertaking both in his personal capacity and on behalf of Destec and acknowledged he did not have a satisfactory explanation as to why this had occurred.46 Mr Wyatt expressed his regret for this breach.47 50 In late July 2025, Mr Wyatt gave instructions to the defendants' solicitors to prepare an apology to the court. However, the application to purge the contempt was not filed until 1 October 2025. Mr Sadler explained this was because of competing work obligations on the part of the defendants' solicitors and not because of any delay on the part of the defendants.48 51 In this case, I accept the defendants' submission that the contravention of the Harman undertaking and the associated contempt is at the lower end of the scale of severity. The Videos are short clips of 44 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [18]. 45 ts 516; Affidavit of Andrew James Filing filed 10 September 2025, 'AJF-17'. 46 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [22] - [23]. 47 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [26]. 48 Affidavit of Peter Edward Sadler filed 1 October 2025 [13] - [15]. -- 15 of 19 -- [2026] WASC 283 HILL J Page 16 the Destec Plant in transit on a public road. There is nothing inherently confidential or sensitive about the contents of the Videos. I also accept the upload of the Videos to Destec's website was not done in deliberate contravention of the Harman undertaking but was a result of carelessness in the manner in which the Videos were then stored on Mr Wyatt's computer. In reaching my decision, I have taken account of the fact the Videos are no longer the subject of the Harman undertaking and that this was an isolated incident. 52 I also accept the defendants have not sought to obtain an advantage in these proceedings by the contravention of the Harman undertaking nor a collateral advantage. There is no evidence the defendants have obtained any tangible benefit from their use of the Videos. 53 The defendants by Mr Wyatt have expressed contrition for the breach of the Harman undertaking. In bringing the application to purge the contempt, the defendants have admitted the fact of the contempt, which occurred shortly after the plaintiffs' application was filed. While there was a delay between Mr Wyatt's conclusion that the Harman undertaking had been breached and the filing of the defendants' application, I accept Mr Sadler's evidence that he received instructions in late July (shortly after Mr Wyatt reached this conclusion) and that any delay is attributable to the defendants' solicitors and not the defendants. 54 Mr Wyatt has also offered an apology to the court and accepted he did not have a satisfactory explanation for the breach of the Harman undertaking. In his affidavit, Mr Wyatt expressed his 'sincere regret for having breached the implied undertaking in relation to the Videos. I have genuine respect for the Court and its processes, and for that reason, I am sorry for my conduct'.49 55 I am satisfied that Mr Wyatt's apology is genuine and that the apology is sufficient. The Harman undertaking is a substantive obligation owed to the court and, as such, an apology directed to the court addresses the breach.50 In cross-examination, senior counsel for the plaintiffs drew Mr Wyatt's attention to the fact that neither the correspondence nor his affidavit contained an apology to the plaintiffs. 49 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [26]. 50 Kelly v Hilton [No 6] [53]. -- 16 of 19 -- [2026] WASC 283 HILL J Page 17 In response, Mr Wyatt agreed that an apology to the plaintiffs should have been included in the correspondence,51 as well as his affidavit.52 56 The plaintiffs submitted the defendants had not adduced any evidence that they had taken positive steps to prevent a breach of the Harman undertaking occurring again. The plaintiffs contended this was particularly critical in these proceedings because confidentiality orders have been sought and obtained in relation to commercially sensitive material that has been produced throughout the proceedings. 57 I do not accept this submission. 58 Mr Wyatt's evidence, which was not challenged in cross-examination, was that after giving instructions to Mr van Zyl on 18 July 2025 to permanently remove the Videos from Destec's website,53 he has taken the following steps to prevent any further breach of the Harman undertaking. First, he has moved the Videos and other material informally discovered by the plaintiffs to a personal hard drive and clearly labelled them as 'Court Documents'. Second, he has instructed Mr van Zyl to delete this material from his email and hard drive.54 59 In my view, these matters are sufficient positive steps that should prevent any future breach of the Harman undertaking from occurring, meaning that the likelihood of any further breach is minimal. 60 Each of these factors favour the grant of the defendants' application. 61 However, a significant factor against granting the defendants' application is that I am not satisfied on the balance of probabilities that the defendants addressed or admitted all relevant circumstances and facts of the contempt in the affidavits filed in support of their application. No reference was made by Mr Wyatt, nor by Mr Sadler, to the events of December 2024. Those matters were material because they bore directly on when the defendants appreciated the Videos were obtained from the plaintiffs, what steps were then taken, and why the Videos remained on the website until July 2025. These matters only emerged in cross-examination. While I accept there may be an 51 ts 528. 52 ts 532. 53 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [18]. 54 Affidavit of Stephen Leslie Wyatt filed 1 October 2025 [19]. -- 17 of 19 -- [2026] WASC 283 HILL J Page 18 explanation or reason for this, none was given by Mr Wyatt in his evidence. 62 The plaintiffs contended that, given the failure by Mr Wyatt to refer to the December 2024 events, his affidavit was 'not only seriously misleading but false'. Specifically, the plaintiffs submitted the statement in Mr Wyatt's affidavit that at the time the Videos were uploaded to Destec's website he did not register the Videos were subject to the Harman undertaking was false. I do not accept this submission. In my view, this is not a fair characterisation of Mr Wyatt's evidence. I find beyond a reasonable doubt that on Mr Wyatt's initial review of Destec's new website, which occurred when he was standing behind Mr van Zyl, Mr Wyatt did not register that the videos displayed on the website were subject to the Harman undertaking. This finding is consistent with Mr Wyatt's evidence in his affidavit as well as in cross-examination. 63 I also accept Mr Wyatt's evidence and find beyond a reasonable doubt that he spoke with Mr Sadler in December 2024 about his concerns and was not told to take the Videos down. Having accepted this evidence, I am not satisfied beyond a reasonable doubt that Mr Wyatt's affidavit was deliberately false. I accept that a possible explanation for the failure to disclose his discussions with Mr Sadler in December 2024 was the desire not to waive privilege, which the plaintiffs have not disproved beyond a reasonable doubt. 64 The result is that, although I accept the apology was genuine, the contempt was not objectively serious, and steps were later taken to remove the Videos and reduce the risk of recurrence, these matters are outweighed by the absence of full and frank disclosure of material circumstances in the affidavits which were filed in support of the purge application. 65 In addition, while the defendants have accepted their conduct constituted a civil contempt, removed the Videos from the website and apologised for their conduct, none of these occurred of their own volition. The Videos were only removed after the plaintiffs raised the matter with them, and the remaining matters only occurred after the plaintiffs filed their contempt application. 66 In all of the circumstances of this case, I am not satisfied that the defendants have purged their contempt. -- 18 of 19 -- [2026] WASC 283 HILL J Page 19 Conclusion and orders 67 For these reasons, I have concluded that the defendants' application should be dismissed. Given this conclusion, it will be necessary to relist the matter to hear any further submissions on the appropriate penalty that should be imposed and as to the costs of the applications. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. KS Associate to the Hon Justice Hill 14 JULY 2026 -- 19 of 19 --