Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - Implied undertaking - Hearne v Street - obligation discharged

• [1] Ms Marie Vic Dawson (the Applicant) is a former employee of Centre for Digestive Diseases (the Respondent). On 4 June 2024 the Applicant lodged an application (the primary proceeding) pursuant to s 365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the respondent contrary to Part 3-1 of the Act.

• [2] The primary proceeding involved the resolution of contested jurisdictional questions and an appeal to a Full Bench of the Commission. Ultimately the primary proceeding was discontinued on 2 July 2025.

• [3] The Applicant seeks the leave of the Commission to file in other proceedings (the secondary proceeding) material filed in the primary proceeding. The Applicant seeks to be relieved of the obligation commonly referred to as the Hearne v Street obligation. The Respondent consents to the application.

• [4] In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, Hayne, Heydon and Crennan JJ described the obligation in these terms:

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.

• [5] The application of the obligation to Commission proceedings has been the subject of limited consideration[1]. Most recently the matter was considered by Vice President Gibian in Bevan Geoffrey Roberts v Quantum-Systems Pty Ltd & Ors [2025] FWC 2193. The Vice President expressed some doubt as to whether the leave of the Commission is required[2].

• [6] I respectfully agree with the Vice President's doubts but nonetheless, in circumstances where the application is consented to, will grant the application by making an order in the terms sought by the Applicant.

• [7] In view of the nature of the secondary proceeding, I will issue a confidential order to the parties which identifies the material in question.

[1] See: 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]

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