The High Court in Hearne v Street  235 CLR 125
confirmed that documents provided by a party to proceedings under
compulsion (pursuant to court orders, by way of discovery or other
compulsory court processes) are subject to an 'implied
undertaking' given to the court by the party receiving the
documents not to use the documents for any purpose other than
litigation. The use of such documents for an ulterior purpose
constitutes a breach of the 'implied undertaking'.
It was held by Hayne, Heydon and Crennan JJ in Hearne v
Street (2008) at  that "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
the leave of the court, use it for any purpose other than that for
which it was given unless it is received into evidence..."
An example of a breach of the 'implied undertaking'
would be using documents attained from an opponent for some
commercial purpose unrelated to the litigation.
The 'implied undertaking' does not apply to documents
given voluntarily to other parties to the proceedings. Moreover, it
is not necessary, in determining whether there was a breach of an
implied undertaking, to prove that the party was aware of their
obligations or that any misuse of documents would amount to a
breach of the implied undertaking.
Consequences for breaching of the 'implied undertaking'
are serious and include fines and even imprisonment. The
'implied undertaking' is generally discharged once the
relevant document is tendered or read in open court. Ultimately,
the implied undertaking is a substantive obligation imposed and
enforced by law, not a voluntary one.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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