Implied Undertaking

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The doctrine of implied undertaking prevents parties received documents under court entitlements (such as discovery or subpoenas from using them for other purposes: Hearne v Street. Such documents can only be used for other purposes or 'released' if:

  1. The documents were admitted as evidence and thus became public (subject to an order to the contrary).
  2. The party was released from the undertaking by the court. The court will release a party if (:Premier Travel v Satellite Centres of Australia):
    1. Such use will result in injustice to the person who produced the documents under subpoena; and
    2. There are special circumstances. The special circumstances test involves considering the following factors:
      • The particular nature of the material produced
      • The policy underlying implied undertaking
      • Whether the needs of justice are better served by relieving from or maintaining the undertaking; and
      • Any other relevant factors.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [11.380]-[11.400].

Introduction

[1] When a party receives an entitlement to inspect documents (eg, under discovery or subpoenas and interrogatories and search orders), there is an implied undertaking that the party will not use the documents for any other purpose than the conduct of the proceedings.

  • However, once a document is admitted as evidence, it becomes public information in accordance to the principle of open justice. This releases the party from the implied undertaking.
    • This is subject to a court order to the contrary (like a non-publication order).
  • A party can also seek a court order to be released from an implied undertaking: Premier Travel v Satellite Centres of Australia.[2]

The obligation of an implied undertaking was discussed in Hearne v Street:[3]

  • An implied undertaking is not voluntary, it is an obligation of substantive law.
  • The primary person bound by obligation is the litigant who receives documents or information, however, it also binds other persons such as such as expert witnesses, litigation funders, and third-parties.

The release of an implied undertaking was discussed in Premier Travel v Satellite Centres of Australia:[4]

  • When documents have been produced under subpoena (or other such methods) and have not been used in open court (ie, admitted as evidence), their release will only be allowed when:
    1. There are special circumstances; and
    2. Such use will not occasion any injustice to the person who produced the documents under subpoena.
  • The special circumstances test involves considering the following factors:
    • the particular nature of the material produced
    • the policy underlying implied undertaking
    • whether the needs of justice are better served by relieving from or maintaining the undertaking;
    • and any other relevant factors.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 661.
  2. [2004] NSWSC 864.
  3. (2008) 235 CLR 125.
  4. [2004] NSWSC 864.
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