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[2024] QCA 109
procedural. The applicant was relieved from the implied obligation owed to the Supreme Court of Queensland in relation to exhibit TMF-3 to the affidavit of Timothy Michael Foley, solely for preparing for...
Alvarez wanted to use material from his criminal proceedings in possible Federal Court proceedings. The Court explained that Australian law generally restricts the use of material obtained through compulsory disclosure to the case for which it was obtained, unless the material was received into evidence. Because his original request was too broad, he narrowed it to one subpoena response. The Court allowed use of that document only to prepare for anticipated Federal Court proceedings and, if those proceedings were commenced, to use it in them.
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2,404 words · generated 08/10/2026
R v Alvarez [2024] QCA 109 is a short procedural decision about the use of material obtained in earlier litigation. It does not decide the truth or legal effect of the applicant’s allegations about the investigation that led to his criminal convictions. Its central question was whether Alvarez could be relieved from an obligation restricting the use of a particular document for a purpose outside the criminal proceedings in which it had been produced.
1 cited instrument linked from this judgment.
The judgment begins by recording the criminal proceedings. Alvarez had pleaded guilty in the Supreme Court of Queensland to conspiracy to import a commercial quantity of a border-controlled drug, contrary to ss 307.1 and 11.5 of the Criminal Code (Cth), and conspiracy to traffic a commercial quantity of a controlled drug, contrary to ss 302.2(1) and 11.5(1) of that Code. He was sentenced to 22 years’ imprisonment, with a fixed non-parole period of 14 years and eight months, and received a pre-sentence declaration of 1,788 days. His sentence appeal was unsuccessful in R v Ocampo Alvarez [2018] QCA 162.
The applicant’s new application initially sought broad relief concerning “all materials” in the Supreme Court sentencing record and the Court of Appeal record. His stated purpose was to use material in matters he anticipated bringing in the Federal Court of Australia. He made allegations concerning the conduct of the investigation, including alleged disregard of statutory protections, fraud and unlawful interrogation. Bond JA expressly cautioned that recording those allegations did not express any view about whether they had merit.
A practical issue narrowed the application. The Court observed that many documents in the earlier proceedings would have been received into evidence and therefore would not be subject to the particular implied obligation under discussion. It also noted that the Criminal Practice Rules 1999 (Qld) provide mechanisms for searching for and obtaining documents. After the Court expressed its preliminary concern about the breadth of the request, Alvarez identified one document: a response by the then Australian Crime Commission to a subpoena in the sentencing proceeding. It was identified as exhibit TMF-3 to an affidavit of Timothy Michael Foley.
The evidence did not clearly establish whether TMF-3 had entered evidence in the sentencing proceeding. Counsel for the CDPP told the Court that it had not. Bond JA therefore proceeded on the basis that the document was subject to the obligation. The Australian Criminal Intelligence Commission, through counsel, did not resist a limited order allowing use of the document to prepare for anticipated Federal Court proceedings and in those proceedings if they were commenced. Alvarez accepted that restriction. The Court made an order on those terms.
The Court’s reasoning has two connected parts: it stated the Australian legal framework and applied it to the document and purpose actually before it.
First, Bond JA said applications of this nature in Australian courts should not proceed by reference to the law stated in Harman v Secretary of State for the Home Department [1983] 1 AC 280. The judgment described Australian law as “framed in a slightly different manner”. It adopted a passage from the judge’s earlier decision in Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136, which relied principally on Hearne v Street (2008) 235 CLR 125.
The rule in that passage is that a person who receives documents or information because another party was compelled to disclose them is legally obliged not to use them for a purpose unrelated to the proceeding in which they were obtained, unless the material is received into evidence. The judgment describes this not merely as an “implied undertaking”, but as a substantive legal obligation to the court arising by operation of law from the circumstances in which the material was generated or received. The quoted passage also says the obligation can bind third parties who know the material’s origins in legal proceedings. The decision did not need to resolve any issue about third-party knowledge.
Second, the Court required a sufficiently focused application. The original request swept in all materials from the sentencing and appeal proceedings. That could include material outside the obligation, such as documents received into evidence, and material accessible through established procedural mechanisms. A blanket order would not accurately reflect the scope of the obligation. The applicant’s narrowing of the application to TMF-3 allowed the Court to address the status of a specific document and a defined proposed use.
The limits of the final order matter. The Court did not authorise unrestricted publication, circulation or use of the document. It relieved Alvarez from the obligation only for preparing for anticipated Federal Court proceedings and using TMF-3 in those proceedings if they were commenced. The decision records that ACIC did not resist that limited relief and that Alvarez was content with it. The reasoning should therefore be understood in that confined procedural setting, rather than as a general ruling that any proposed collateral use should be allowed.
The judgment does not purport to establish a new general doctrine or announce a change in the law. Rather, it states the Australian approach to an existing obligation and applies it to a particular document.
Before the decision, the rule relevant to the application was already expressed in Hearne v Street and the other authorities mentioned in the footnote to the passage quoted from Tri-Star Petroleum. Under that formulation, compulsory production in litigation generally carries a restriction on using the material for purposes unrelated to the proceeding in which it was obtained. The obligation is treated as substantive and owed to the court. The quoted formulation includes an important qualification: it does not apply in the same way where the material is received into evidence.
The judgment contrasts this Australian framing with Harman. It does not provide a comprehensive account of the English decision or analyse all differences between the two approaches. Its point is narrower: Australian applications should be determined by reference to the Australian formulation, not by simply invoking the case name “Harman obligation”. Accordingly, the label should not replace analysis of how the material was obtained, whether it was received into evidence and what use is proposed.
After the decision, the practical result for TMF-3 was a specific exception to the obligation, limited by purpose. The judgment does not suggest the obligation generally disappeared or that the document became available for any use. Nor does it determine whether the anticipated Federal Court proceedings would be commenced, what claims might be brought, or whether the document would be admissible or useful there. It records only permission, in the form of relief from the obligation, for the stated preparation and use.
The judgment also highlights the difference between documents subject to the obligation and documents that can be obtained through other procedural routes. It notes that documents received into evidence are not subject to this implied obligation and refers to mechanisms in the Criminal Practice Rules 1999 (Qld). That observation is tied to why the broad request was not appropriate; the decision does not explain those rules’ detailed operation.
The first important statement is: “The law in Australia is framed in a slightly different manner.” In plain English, the Court was directing attention to Australian authority rather than treating the English case Harman as the source of the applicable rule. The comment is brief and should not be read as a full comparative analysis.
The central rule is that a recipient of compelled disclosure is subject to a “legal obligation not to use it for a purpose unrelated to the conduct of the proceeding in which it was obtained, unless it is received into evidence”. Put simply, getting a document through compulsory court processes does not normally make it free to use in an unrelated matter. The stated qualification is that receipt into evidence changes the analysis described in the judgment.
The Court also explained that the obligation is “better regarded as a substantive legal obligation to the court”. In plain English, the Court treated the restriction as a legal duty arising from the circumstances of disclosure, rather than simply a promise between litigants. The quoted passage, drawing on Hearne v Street, also says the obligation may extend to third parties who know the material came from legal proceedings.
The order’s purpose restriction is equally significant. Relief was granted “solely” for preparing for anticipated Federal Court proceedings and for use in those proceedings “if they are commenced”. This means the order did not authorise use for an unspecified purpose. The condition also reflects that the Federal Court proceedings were anticipated, not proceedings that the judgment says had already commenced.
Finally, Bond JA stated that the applicant’s allegations should not be taken as expressing a view on their merit. In plain English, this decision did not validate or reject the allegations about the investigation. It concerned the permitted use of TMF-3, not the underlying criminal investigation or any prospective Federal Court claim.
The decision is most relevant where a person seeks to use documents or information obtained because of compulsory disclosure in an earlier proceeding for a purpose outside that proceeding. The key factual questions suggested by the reasons are how the material came into the person’s hands, whether it was received into evidence, how specifically the material is identified, and what proposed use is being sought.
A broad request covering an entire court file may raise the problem identified here. Some documents may not be subject to the obligation, while others may be governed by access procedures. The case illustrates that a request tied to a particular document and a defined purpose gives the court a more precise question to decide. Here the application was narrowed to one subpoena response, exhibit TMF-3.
The decision also concerns an application where the proposed collateral use is for anticipated litigation in another court. The Court’s order was conditional in scope: preparation for Federal Court proceedings and use in those proceedings if commenced. It does not establish that relief will be granted whenever a party proposes future litigation. The outcome was also made in circumstances where ACIC did not oppose relief on those limited terms and the applicant accepted them.
The decision is less directly informative where the material has already been received into evidence, where the proposed purpose is not clearly stated, or where an affected party contests the requested relief. The judgment flags the first situation but does not determine a contested application concerning it. It also does not resolve questions about the admissibility of the document in later proceedings, the merits of any claim, or the scope of the obligation in a different factual setting.
The supplied judgment contains no account of later judicial treatment of R v Alvarez [2024] QCA 109. It was delivered on 7 June 2024, and the text does not cite any later decision applying, distinguishing, or reconsidering it. It would therefore be unsupported to describe a subsequent line of cases or assert that later courts have adopted its approach.
The judgment does identify the authorities on which its explanation of the Australian obligation rests. Hearne v Street is cited for the proposition that the obligation arises from compelled disclosure and restricts collateral use, subject to the stated qualification for material received into evidence. Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited is the source from which Bond JA reproduced the explanatory passage. The footnote also refers to Esso Australia Resources Ltd v Plowman, Ainsworth v Hanrahan, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd, Universal Music Australia Pty Ltd v Pavlovic, and British American Tobacco Ltd v Cowell (No 2) as supporting or relevant authorities. These are authorities cited in this judgment, not later treatments of it.
The judgment’s relationship with Harman is also carefully limited. Bond JA says Australian applications should not proceed by reference to the law stated in that case because the Australian law is framed differently. The footnote identifies Harman as contrary to the proposition in the quoted passage. The reasons do not undertake a broad examination of how Australian courts have treated every aspect of Harman, so the decision should be cited for the Australian formulation it adopts rather than for a more sweeping comparative proposition.
Several matters remain open because they were not necessary to decide the application. The judgment does not determine the merits of Alvarez’s allegations about the ACC, ACIC, the CDPP or the investigation. It expressly disclaims any view on those allegations. Nor does it decide whether anticipated Federal Court proceedings would be filed, what causes of action they might involve, or whether TMF-3 would be admissible or relevant in them.
The status of TMF-3 was not conclusively established by the evidence recounted in the reasons. The Court said it was “not clear” whether the document had found its way into evidence in the sentencing court. It proceeded on the basis that it was subject to the obligation, noting that the CDPP’s counsel informed it that the document had not been received into evidence. The decision therefore does not resolve what the result would have been if the document had been received into evidence.
The judgment also does not set out a general test for balancing competing considerations when relief is opposed. ACIC did not resist an order limited to the stated purpose, and the applicant accepted that limit. There was no contested analysis of alternative conditions, third-party interests, confidentiality concerns, or other proposed uses. Likewise, while the quoted passage says the obligation can bind third parties with knowledge of the material’s origins, the application did not require the Court to decide how that principle would apply to any particular third party.
Finally, the judgment does not detail the procedures under the Criminal Practice Rules 1999 (Qld) for obtaining documents from the earlier criminal proceedings. It mentions those mechanisms as one reason not to make a broad order, but does not explain their requirements or decide whether they would provide access to any particular document. These questions would depend on the relevant material, its procedural status, the intended use, and the applicable rules and authorities.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
[2024] QCA 109
COURT OF APPEAL
BOND JA
CA No 129 of 2016
SC No 409 of 2014
THE KING
v
ALVAREZ, Juan Pablo Ocampo Applicant
BRISBANE
FRIDAY, 7 JUNE 2024
JUDGMENT
BOND JA: Following pleas of guilty in the Supreme Court of Queensland, Mr Alvarez, the present applicant, was convicted of one offence of conspiracy to import a commercial quantity of a border-controlled drug contrary to sections 307.1 and 11.5 of the Criminal Code (Cth) and one offence of conspiracy to traffic a commercial quantity of the controlled drug contrary to sections 302.2(1) and 11.5(1) of the Criminal Code (Cth).
He was sentenced to a term of 22 years imprisonment with a fixed non-parole period of 14 years and eight months imprisonment. A pre-sentence declaration of 1,788 days was made as time served under the sentence. Mr Alvarez brought an unsuccessful appeal against sentence (see R v Ocampo Alvarez [2018] QCA 162). The ground of appeal was that his sentence was manifestly excessive.
It is evident from the report of the latter case that the sentencing judge in the Court below had to determine certain disputed questions of fact, namely in relation to his involvement in the conspiracies:
whether he knew the size of the importation;
what remuneration he was expecting to receive;
whether he was the subject of threats and intimidation to secure and to retain his involvement in the enterprise; and
the proper characterisation of his role.
The applicant filed an application in this Court seeking the following order:
“The ex-parte Applicant seeks an Order of this Court to be relieved of any obligations owed to this Court in its exercise of federal jurisdiction, upon all materials (restricted or otherwise) entered into the Queensland Supreme Court record of evidence pertaining to indictment 409/2014 and the Court of Criminal Appeal pertaining to the application CA 129/2016 and any Orders made upon that material (restricted or otherwise) entered into the record of evidence which resulted in the judgment R v Ocampo Alvarez [2018] QCA 162.”
The applicant’s reasons for seeking such an order are expressed in his affidavit before me. He says that he seeks to be removed of any obligations owed to the courts of Queensland for the purpose of utilising the materials described in the order because he wants to use that material to further matters in the jurisdiction of the Federal Courts, he says, in the interests of the administration of justice.
He complains of what he says was unlawful conduct in relation to the means by which he was investigated for the offences which were eventually dealt with in the Supreme Court. He says in his affidavit that he believes that there was a reckless disregard of mandatory statutory protection mechanisms, fraud and acting ultra vires which amounted to a grossly unlawful interrogation which was concealed or withheld from the courts by those purporting to uphold the law. Amongst other agencies said to have been involved in the conduct of which he complains are the Australian Crimes Commission (ACC), now known as the Australian Criminal Intelligence Commission (ACIC) and the Commonwealth Director of Public Prosecutions (CDPP). Obviously, nothing that I have recorded should be taken as my expressing a view one way or the other as to whether there is any merit in Mr Alvarez’s complaints.
The applicant served the application on the CDPP. In light of the generality with which it was framed, the Australia Government Solicitor who represented ACIC chose not to seek to intervene but communicated to the court and Mr Alvarez that they were ready so to do in the event that the relief sought was made more particular. Prior to the hearing today, the Australian Government Solicitor provided to Mr Alvarez an affidavit of Timothy Michael Foley which, amongst other things, identified a particular response made on behalf of the then ACC to a subpoena which was responded to in relation to the sentencing proceeding in the Queensland Supreme Court. I will come back to what occurred in this court consequent upon Mr Alvarez considering that affidavit.
The applicant bases his application for relief from what he refers to as “the Harman obligation”. Applications of this nature in the courts of Australia should not proceed by reference to the law stated in the case referred to by that name, namely Harman v Secretary of State for the Home Department [1983] 1 AC 280. The law in Australia is framed in a slightly different manner. The law is, as I explained in Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136 at [46] (footnotes in original):
“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 receiving the disclosure is subject to a legal obligation not to use it for a purpose unrelated to the conduct of the proceeding in which it was obtained, unless it is received into evidence: Hearne v Street (2008) 235 CLR 125, per Hayne, Heydon and Crennan JJ*.*1 It is common to say that the recipient of the documents is subject to “the implied undertaking”. However, the obligation is better regarded as a substantive legal obligation to the court, which arises by operation of law by virtue of the circumstances under which the material was generated or received.2 The obligation so arising also binds third parties if they know of the origins of the material in legal proceedings.3”
It is evident from the brief recitation of the nature of the proceedings in the Queensland Supreme Court and in the Queensland Court of Appeal that many documents inevitably were dealt with in the sentencing court and in the Court of Appeal which will have made their way into evidence. They will not be the subject of any implied obligation and mechanisms exist under the Criminal Practice Rules 1999 (Qld) to search for and obtain such documents. There is no occasion to give any order relieving from the implied obligation in relation to such documents. Indeed, that is one reason why I would not accede to an order expressed in the general way in which the order was expressed in the application as filed and I conveyed my preliminary view to that effect to the applicant during oral argument today. That led to the applicant referring to the affidavit which he had obtained from the Australian Government Solicitor on behalf of ACIC and indicating an intention to narrow his application so it referred only to a particular document namely the response of ACIC to a subpoena issued in relation to the sentencing proceeding. That document is sufficiently described as exhibit TMF-3 to the affidavit of Mr Foley filed by leave today.
His expression of an intention to amend the application led to an application advanced by the Australian Government Solicitor on behalf of ACIC to be heard in relation to the application. I acceded to that application. It was not opposed by the present applicant. I gave the applicant leave to amend his application so that it was expressed in these terms:
“The ex parte applicant seeks an order of this court to be relieved of any implied obligation owed to this court in its exercise of federal jurisdiction in relation to the document which is exhibit TMF-3 to the affidavit of Timothy Michael Foley filed by leave today.”
It is not clear on the evidence that the document which is TMF-3 found its way into evidence in the sentencing court. Counsel who appeared on behalf of the CDPP informed me that it did not.
Accordingly I propose to act on the basis that the document which is exhibit TMF-3 was the subject of the implied obligation to which I have referred. In the course of an exchange with Mr Kerr who represented the ACIC it became clear that the ACIC would not resist an order relieving Mr Alvarez of the implied obligation so long as that relief was solely for the purpose of preparing for anticipated proceedings by Mr Alvarez in the Federal Court of Australia and use in such proceedings if they are commenced. Mr Alvarez was happy with an order so conditioned. Accordingly, it does seem to me that is appropriate to make such an order.
The order I make is the applicant is relieved from the implied obligation owed to the Supreme Court of Queensland in relation to exhibit TMF-3 to the affidavit of Timothy Michael Foley filed by leave today solely for the purpose of Mr Alvarez’s preparing for anticipated proceedings by him in the Federal Court of Australia and use in such proceedings if they are commenced.
Hearne v Street (2008) 235 CLR 125*,* per Hayne, Heydon and Crennan JJ at [96] and also at [105]-[108]. Their Honours’ articulation of the qualification regarding reception into evidence is sufficient to make the proposition authoritative. But reference might also be made to Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, per Mason CJ at 32-33; Ainsworth v Hanrahan (1991) 25 NSWLR 115, per Kirby P at 167; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 18 ACSR 218 per Giles CJ at 221; Universal Music Australia Pty Ltd v Pavlovic [2017] NSWSC 314 per Gleeson JA at [28] and, contra, Harman v Secretary of State for the Home Department [1983] 1 AC 280 per Lord Diplock at 306 per Lord Keith at 308-309 and per Lord Roskill at 324-325; British American Tobacco Ltd v Cowell (No 2) (2003) 8 VR 571 per Phillips, Batt and Buchanan JJA at [49]. ↩
Hearne v Street per Hayne, Heydon and Crennan JJ at [105]-[108], with whom Gleeson CJ agreed at [3] and Kirby J agreed at [56]-[58]. ↩
Hearne v Street per Hayne, Heydon and Crennan JJ at [109]-[112], with whom Kirby J agreed at [56]-[58]. Gleeson CJ agreed at [3]-[4] that the obligation would extend to servants and agents of the litigant who received the documents but considered it unnecessary to decide how far the legal obligation extended beyond that class of persons consisting of servants or agents of a party. ↩
R
Alvarez [2024] QCA 109
(2008) 235 CLR 125
(1995) 183 CLR 10
(1991) 25 NSWLR 115
(2003) 8 VR 571
The applicant was relieved from the implied obligation owed to the Supreme Court of Queensland in relation to exhibit TMF-3 to the affidavit of Timothy Michael Foley, solely for preparing for anticipated proceedings by the applicant in the Federal Court of Australia and using the document in those proceedings if commenced.