Hearne v Street

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edgar & Edgar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The parties are engaged in proceedings pursuant to Pt VIII of the Family Law Act 1975 (Cth) ("the Act") which are yet to be allocated a final hearing date. The parties are also engaged in satellite litigation before the Supreme Court of New South Wales between the husband, wife, and a company B Ltd who hold three mortgages over the matrimonial home of the parties.
2. In the Pt VIII proceedings, the wife issued a subpoena to a firm of solicitors who it is asserted acted on behalf of the husband and wife in relation to at least two of the mortgages. By Application in a Proceeding, the wife seeks a series of orders that would permit her to use the subpoenaed documents in the Supreme Court proceedings. The orders the wife seeks are in the following terms:
   1. That the Court grant leave to the Applicant's legal representative , Mr [P], to be released from the implied undertaking described in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (the Harman undertaking) in respect of documents produced by [K Lawyers] pursuant to a subpoena issued on 14 July 2025 and received on 28 July 2025 in these proceedings.
   2. That the release be granted solely for the purpose of permitting Mr [P] to use the documents described in Annexure A to the Application in ongoing proceedings before the Supreme Court of New South Wales, being proceedings concerning the three mortgage loans asserted by [B Ltd] over the marital home located at [D Street] [Suburb E] New South Wales.
3. In the affidavit of the wife's solicitor in support of the application, he states the following:
   1. On 14 July 2025 a subpoena to produce was issued to [K] Lawyers, seeking production of documents relevant to the parties' financial dealings and historical transactions.
   2. [K Lawyers] previously represented the applicant and respondent with respect to the mortgage loans from [B Ltd] and [H] Ltd.
   3. On 28 July 2025, [K Lawyers] produced documents in response to the subpoena. The documents were received by the Registry and made available for inspection.
   4. I am currently collating a list of the documents produced which are the subject of this application. This will be completed by 11 August 2025.
   5. The documents will be essential to the conduct of proceedings commenced in the Supreme Court of New South Wales by [B] Ltd concerning the largest asset in the marital property pool - the marital home located at [D Street], [Suburb E], New South Wales.
   6. I seek a limited release from the Harman undertaking to allow use of these documents solely in connection with those Supreme Court proceedings.
   7. The release sought is confined to use for the purpose of those proceedings and is not sought for any unrelated or collateral purpose.
   8. In the circumstances, it is just and proper that the undertaking be varied to permit such use.
   9. On [...] 2025, the Supreme Court of New South Wales granted the Wife 's application to vacate the [...] 2025 summary judgment application brought by [B Ltd].
   10. [His Honour] accepted the undertaking provided by Ms Edwards, of counsel, that this application would be filed in the Family Court immediately and brought to the attention of the Court seeking release of the documents as soon as possible which are necessary to defend the application for summary judgment.
4. The wife's application is not opposed by the husband. The wife's counsel informed the Court that the solicitors who were the subject of the subpoena have been given notice of the application and do not wish to be heard.
5. The leave to which the application refers is that identified by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 ("Hearne v Street"), where their Honours record in the following terms:
   1. 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. ...

1. At [97], the High Court said that "[i]t is common to speak of the relevant obligation as flowing from an "implied undertaking".
2. That said, the plurality observed at [102] that the use of the term '"implied undertaking' is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received".
3. Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896 explained the reasoning in the following terms:

Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

1. The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.
2. The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors and counsel and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.
3. As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).
4. The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Rule 6.04 is in the following terms:

(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:

(a) must use the document for the purpose of the proceeding only; and

(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission.

(2) However:

(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor's client or counsel; and

(b) a client may disclose the contents of the document or give a copy of the document to the client's solicitor or counsel; and

(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.

1. The permission to which r 6.04(1)(b) is directed has been described as requiring the establishment of special circumstances.
2. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 ("Springfield Nominees"), Wilcox J said at 225:

... For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it 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 into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

1. His Honour did not import words of limitation to the discretion. It is clear that the discretion is appropriately wide to fit the circumstances of each particular scenario.

1. The parties are engaged in proceedings before this court and in proceedings before the Supreme Court of New South Wales. The proceedings before the Supreme Court of NSW involve factual and legal issues that it is contended overlaps substantially with the proceedings before this court.
2. The documents that are sought to be used in the Supreme Court proceedings are said to aid the applicant in the prosecution of her claim in that court. Whilst the husband consents to the release of the documents that is but one fact that the Court has to consider in the determination as to whether to grant the leave.
3. It is clear from what their Honours identified in Hearne v Street that the documents the subject of the subpoena are covered by the implied undertaking. I am satisfied that to deny her access to those documents may have the effect of compromising her conduct of those proceedings. I am also satisfied that in the event the application was denied; an alternative method open to the wife would be to issue a subpoena in the Supreme Court of NSW. To do so would be duplicative, costly and serve no legitimate purpose in circumstances where such application has been properly brought.
4. I am satisfied to adopt Wilcox J's words in Springfield Nominees that special circumstances have been established and accordingly I will make orders as sought by the wife.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.