s.604 - Appeal of decisions

Quantum-Systems Pty Ltd, Mr Michael Lillehagen, Kim Hannant, David Sharpin, Quantum-Systems Gmbh

Application for leave to use documents produced in response to an order for production in related Federal Court proceedings - Harman undertaking - Whether production of documents in response to order for production to the Commission implies undertaking of party procuring production not to disclose contents in other proceedings - Power of the Commission to release party from implied undertaking - Whether release necessary in the circumstances - Out of an abundance of caution leave to use documents in Federal Court proceedings granted.

• [1] Bevan Roberts is a former employee of Quantum-Systems Pty Ltd. After his employment came to an end, Mr Roberts applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. Quantum-Systems raised a jurisdictional objection to the application. In preparation for a hearing of the jurisdictional objection, a member of the Commission made an order for production on 14 March 2025 under s 590(1) and (2)(c) of the Act directed at Quantum-Systems. The documents required to be produced included Mr Roberts' personnel file, documents relating to the decision to conclude Mr Roberts' employment, documents relating to concerns raised by Mr Roberts about his safe return to work, documents relating to medical certificates provided by Mr Roberts and document relating to an investigation conducted in relation to Mr Roberts. Documents were produced on 17 March 2025.

• [2] Part way through the hearing of the jurisdictional objection, Quantum-Systems withdrew its objection and, following a conference conducted by the member of the Commission, a certificate was issued under s 368(3) of the Act on 24 March 2025. On 7 April 2025, Mr Roberts commenced proceedings in the Federal Court of Australia in Matter No. QUD189/2025. In the Federal Court proceedings, Mr Roberts alleges that Quantum-Systems has contravened various provisions of the Act, including ss 117, 340 and 351 including by terminating his employment for reasons prohibited by ss 340 and/or 351. Mr Roberts also pleads certain breaches of contract as well as contraventions of the Corporations Act 2001 (Cth) and the Work Health and Safety Act 2011 (Qld). The proceedings in the Federal Court remain in their early stages.

• [3] On 17 July 2025, Mr Roberts applied to the Commission for an order that leave be granted for him to use certain documents produced pursuant to the order for production made by the Commission for the purpose of the Federal Court proceedings. The application annexes correspondence between solicitors for Mr Roberts and solicitors instructed by Quantum-Systems. In short, on 2 July 2025, solicitors for Mr Roberts provided solicitors for Quantum-Systems with a draft of the application and asked for its consent to leave being granted to Mr Roberts to use the documents in the Federal Court proceedings. Further correspondence ensued dated 4 July 2025, 11 July 2025, 17 July 2025 and 15 July 2025. It is sufficient to record that, by email correspondence dated 15 July 2025, solicitors for Quantum-Systems stated:

We refer to your request regarding the use of the documents disclosed or used in the proceedings before the Fair Work Commission in connection with the Federal Court proceedings.

Our clients consent to the order sought in the Draft Form F1, for leave to be granted for the use of the documents identified in annexure A to your letter of 11 July 2025 in the Federal Court proceedings. Our clients' consent does not include consent to those documents being placed into evidence without a proper evidentiary foundation and our clients reserve all rights to object to any document being placed into evidence without proper evidentiary foundation or on the grounds of privilege.

• [4] Mr Roberts then filed the present application for leave to be granted to use certain of the documents produced to the Commission for the purpose of the Federal Court proceedings. Mr Roberts' primary position is that leave is not required because, as a result of the interconnection between the proceedings, use of the document in relation to the Federal Court proceedings would not constitute a collateral or ulterior purpose. However, Mr Roberts seeks a formal order that he be released for the implied undertaking to use the documents for the purpose of the Federal Court proceedings "to ensure abundant clarity, and out of deference to the Commission".

• [5] Where a party to litigation is compelled to produce documents or information during litigation, other parties having access to the documents or information are subject to an implied obligation not to use the documents or information for a collateral or ulterior purpose unrelated to the proceeding. The obligation is commonly referred to as the "Harman undertaking" after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is perhaps better referred to in Australia as the implied Hearne v Street obligation after Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.[1]

• [6] In Hearne v Street, the principle was explained by Hayne, Heydon and Crennan JJ as follows:[2]

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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.

• [7] Although referred to as an "undertaking", the principle represents a substantive obligation which arises as a result of the circumstances in which documents are generated and received and is not dependent on the consent or intention of the party.[3] Another way in which the source of the obligation may be expressed is that a party receiving a document or information in circumstances in which the party is aware that it was produced under compulsion is taken to undertake that the document or information will not be used for any other purpose than the action in which they are produced.[4]

• [8] The Commission has found, or assumed, that the Hearne v Street obligation operates with respect to documents or information produced in compliance with an order of the Commission.[5] In Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467 (Otter Gold Mines), Sundberg J found that the implied undertaking applied with respect to documents produced in response to a summons issued by the Administrative Appeals Tribunal because it applied by reason of the documents being produced under compulsion.[6] The same conclusion must follow with respect to the Commission. Section 590(1) and (2)(c) of the Act permit the Commission to inform itself by "requiring a person to provide copies of documents or records, or to provide any other information to the FWC". Conduct that contravenes an order of the Commission is capable of constituting an offence under s 675(1) of the Act. The bases for the existence of the implied undertaking are present in relation to documents or information produced in answer to an order made by the Commission.

• [9] In Otter Gold Mines, Sundberg J also accepted that the Administrative Appeals Tribunal had the power to release a party from the implied undertaking because it is a necessary incident of the power to compel the production of documents. His Honour observed:

The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin.

• [10] The same reasoning should be applied to the Commission. The capacity to release a party from the implied undertaking is a necessary incident of the power conferred by s 590 of the Act for the Commission to inform itself in relation to a matter before it by requiring a person to provide documents, records or other information. As such, the Commission is able to release a party from the implied undertaking if satisfied it is appropriate to do so.

• [11] The primary position of Mr Roberts is that leave is not required because using the documents produced for the purposes of the Federal Court proceedings does not involve use for a collateral or ulterior purpose. The basis of the submission is that the relationship between the application to the Commission and the Federal Court proceedings means that use of documents produced to the Commission is not an improper use or a use other than that for which the documents were produced.

• [12] It is generally impermissible to use documents or information produced in one proceeding for the purpose of a separate proceeding without obtaining leave. However, the authorities referred to by Mr Roberts support the proposition that leave may not be required where there is sufficient connectedness between the first and second proceedings such that use in the second proceeding is not collateral or improper. For example, Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129 concerned the use of affidavits filed in Family Court proceedings in subsequent proceedings in the County Court for the purposes of contending that an estoppel or abuse of process arose as a result of the Family Court proceedings. After having reviewed relevant authorities, the Victorian Court of Appeal said:[7]

In our view, these cases provide support for a general proposition that there is a class of subsequent cases between the same parties, or their privies, where the connection between the two cases has the result that the Harman undertaking in the earlier case does not prevent use of documents or information subject to that undertaking in the subsequent proceeding. In this case, the connection to the proposed estoppel and abuse of process defences is particularly strong, as those defences depend entirely for their existence on the whole of the issues in, and the conduct of, the Family Court proceeding. We note that the Family Court is not a court of pleading. Instead, the substance of the respective claims and defences are required to be set out in affidavits, verified financial statements and the like. If it were a court of pleading, estoppel and abuse of process claims such as the applicant now seeks to raise could readily be made by reference to pleading documents without raising any Harman issue.

In our view, there was much force in the applicant's argument that each of the proposed defences 'arises directly out of' or is 'legitimately' connected with the property settlement issues concerning the apartment which appear to have been finally resolved by the Family Court proceeding. Rather than using the documents for a purpose ulterior to the Family Court proceeding, the applicant seeks to use them to demonstrate that the respondent seeks to undermine the Family Court proceeding. In these circumstances, it does not appear that there is any 'collateral' or 'ulterior' purpose in the proposed use of the documents and information subject to the Harman undertaking in the Family Court in the County Court proceeding. However, as already noted, we need not decide that question.

• [13] The relationship between the Commission proceedings and the Federal Court is clear. Unless the application includes a claim for interim relief, a person who alleges they have been dismissed in contravention of Part 3-1 of the Act cannot make a general protections court application unless the person first applies to the Commission under s 365 of the Act and the Commission has issued a certificate under s 368(3).[8] An application under s 365 must involve a claim that the applicant has been dismissed in contravention of Part 3-1 of the Act. The claims sought to be advanced by Mr Roberts in the Federal Court proceedings include that he was dismissed in contravention of ss 340 and/or 351 of the Act which fall within Part 3-1. That is the same matter alleged in the Commission proceedings. In those circumstances, the use of the documents produced in the Commission proceedings in the Federal Court proceedings is for the purpose of the determination of the same dispute between the same parties and would not involve a breach of the implied undertaking.

• [14] There is another reason why, it appears to me, leave is not required. Authority suggests that, although it is expressed as an undertaking to the court, when consent is clearly given, the consent of the producing party is sufficient to release the party in receipt of the documents from the obligations owed.[9] Quantum-Systems, being the party who produced the relevant documents, has consented to leave being granted for Mr Roberts to use the documents for the purposes of the Federal Court proceedings. The agreement of Quantum-Systems should be sufficient to release Mr Roberts from his obligations with respect to the use of the documents produced by Quantum-Systems.

• [15] Although I have formed the view that leave to use the documents for the purposes of the Federal Court proceedings is not required, out of an abundance of caution, it is appropriate to consider whether leave should be granted for Mr Roberts to be relieved from the implied undertaking. In order to be released from the implied undertaking, the party concerned must demonstrate "special circumstances".[10] In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283, Branson, Sundberg and Allsop JJ explained the proper approach as follows:

... 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 discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

• the nature of the document;
• the circumstances under which the document came into existence;
• the attitude of the author of the document and any prejudice the author may sustain;
• whether the document pre‑existed litigation or was created for that purpose and therefore expected to enter the public domain;
• the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information):
• the circumstances in which the document came in to the hands of the applicant; and
• most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

• [16] I am satisfied that, if required, leave should be granted for Mr Roberts to use the documents produced to the Commission for the purposes of the Federal Court proceedings. First, Quantum-Systems consents to an order being made giving leave for Mr Roberts to use the documents in the Federal Court proceedings. Second, the application to the Commission was an essential prerequisite to bringing the Federal Court proceedings and the Federal Court proceedings involve, at least in part, the determination of the same dispute between the same parties. Third, although they are not all documents to which Mr Roberts was privy during his employment, the documents produced all relate to Mr Roberts' employment with Quantum-Systems and concern him. Fourth, the documents are likely to facilitate the resolution of the issues in those proceedings, particularly the examination of the reasons for the conduct complained of by Mr Roberts. Fifth, solicitors for Mr Roberts indicate that the documents may assist the parties in the conduct of alternative dispute resolution processes which is to be encouraged.

• [17] Out of an abundance of caution, it is appropriate that the Commission make an order granting leave for Mr Roberts to use the relevant documents for the purposes of the Federal Court proceedings in Matter Number QUD189/2025. An order to that effect will issue separately to this decision.

[1] Wreck Bay Aboriginal Community Council v Commonwealth (No 2) [2023] FCA 811 at [20] (Lee J).

[2] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96] (Hayne, Heydon and Crennan JJ, Gleeson CJ and Kirby J agreeing).

[3] Frigger v Trenfield (No 5) [2020] FCA 827 at [19] (Jackson J) citing Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [3], [46], [102] and [105]-[108].

[4] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [105] (Hayne, Heydon and Crennan JJ).

[5] Patterson v Service Panel Pty Ltd (t/as Service Panel Pty Ltd) [2017] FWC 1305 at [26]; Klippert v Veolia Environmental Services (Australia) Pty Ltd [2020] FWC 4669 at [10]- [11]; Patterson v Service Panel Pty Ltd (t/as Service Panel Pty Ltd) [2022] FWC 701 at [8]- [9]

[6] Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467 at 471-472 (Sundberg J).

[7] Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129 at [19]- [20] (Tate, McLeish and Hargrave JJA). See also LCM Operations Pty Ltd, in the matter of 316 Group Pty Ltd (in liq) [2021] FCA 324 at [25]- [27] (Stewart J); Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang (No 5) [2021] FCA 1302 at [20]- [21] (Anastassiou J); Sentinel Orange Homemaker Pty Ltd v Bailey [2022] FCA 85 at [12]- [13] (Stewart J).

[8] Fair Work Act 2009 (Cth), s 370.

[9] Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567 at 572 (Byrne J); Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 338 (Anderson J); Stokes v Toyne [2021] NSWSC 1049 at [21] (Rein J).

[10] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at [17], [22]-[23] and [26] (Wilcox J); Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31]- [32] (Branson, Sundberg and Allsop JJ); Glencore Coal Pty Limited v Franks [2021] FCAFC 61; (2021) 284 FCR 622 at [20] (Reeves, Perry and Abraham JJ).

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