The applicants sought an order that they be retrospectively released from their implied undertaking not to use documents obtained from the respondent in a prior proceeding for a subsequent proceeding.
Relevantly, the applicants initiated proceedings in 2013 against the deceased’s son for unauthorised withdrawals from a bank account which contained the proceeds of the sale of the deceased’s real property. In that proceeding, the applicants requested disclosure of records (the “disclosed documents”) held by the respondent in relation to the accounts accessed by the deceased’s son. In 2017, the applicants initiated proceedings against the defendant, inter alia, supported by the disclosed documents.
The respondent cross applied for the application to be struck out based on the applicants’ breach of their implied undertaking.
The relevant law
Outlining the relevant principles, Lyons SJA referred to Hearne v Street, where the meaning of an “implied undertaking” was described. In that case, Hayne, Heydon and Crennan JJ stated:
 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. …
Her Honour continued, referring to Liberty Funding Pty Ltd v Phoenix Capital Limited, where the Federal Court described the circumstances where the discretion to release a party from its implied undertaking will be exercised. In that case, Branson, Sundberg and Allsop JJ stated:
 … The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. …
The Lyons SJA referred to Springfield Nominees Pty Ltd v Bridgelands Securities Ltd where Wilcox J set out a number of factors that could be relevant to the exercise of the discretion as follows:
- the nature of the document;
- the circumstances in which the document came into existence;
- the attitude of the author and any prejudice the author may sustain;
- the nature of the information in the document, particularly if it contains person or sensitive information;
- the circumstances in which the document came into the hands of the applicant; and
- the likely contribution of the document to achieving justice in the other proceeding.
Her Honour first discussed the discretion to retrospectively release a party from the implied undertaking, stating:
 … there can be no doubt that it is not usual to give leave nunc pro tunc. There can, however, be circumstances which justify such a release. Whilst special circumstances are required to give the relief sought the circumstances do not have to be extraordinary. …
 Unlike Miller and, it would seem, Forty Two International, this is not a case where the plaintiffs could not have brought their claims without the use of the documents protected by the “implied undertaking”. To strike out the action now would give the defendant the benefit of being able to plead a limitations defence which it could not have pleaded at the time when the action was commenced. …
Her Honour found that it was of significance that the applicants would have been entitled to most of the disclosure documents because the account in question were held in the applicants’ names. Her Honour continued:
 As to the question of how the documents came into existence, they appear to be routine documents which were brought into existence during the normal course of QBank’s banking operations. As counsel for the Trustees submits, there may well be some information which is confidential as between QBank and the “customer” but the Trustees were at all times strictly the customer. These banking records were already in existence and were not created for the purpose of litigation. They also do not appear to contain any commercially sensitive information.
 I also accept that the plaintiffs’ failure to seek release from the implied undertaking before the documents were used in these proceedings was not deliberate. I am satisfied on the basis of the affidavit material that the plaintiffs’ failure to comply was due to inadvertence on the part of their solicitor, who overlooked the issue due to pressures of work, other commitments and a looming time limitation on the claim. …
Ultimately, Lyons SJA held that in the circumstances, the likely contribution of the disclosed documents in achieving justice was that the applicants’ failure should be excused and leave granted to relieve the applicants from their implied undertaking.
Her Honour was to hear the parties as to the form of orders and costs.
David Cormack – Brisbane Barrister & Mediator