Our legal system recognises that we have a right to privacy so far as our documents and papers are concerned.  If you are forced to produce a document in legal proceedings, our courts impose an "implied undertaking" that any documents we deliver may only be used in the legal proceeding that compelled the production. 

On my reading of the literature the "implied undertaking" is not simply a contractual term or agreement between parties to proceedings, rather it is a non-negotiable enforcable undertaking to the Court.  A breach of the implied undertaking is a serious contempt of court.  A breach would seem to include taking documents that were produced under some power or order and then using them in any way other than in the original legal proceeding. 

I would appreciate any opinions about the applicability of the implied undertaking as it may relate to documents and other evidence provided to Fair Work Australia as a result of its powers to order witnesses to attend interviews and to produce documents.

Say for example Bill Shorten got access to the information in the Fair Work Australia dossiers on the Health Services Union - theoretically - and say that information found its way into an Application for a court to appoint an Administrator to the Health Services Union.   Anyone care to theorise?

Allens published this opinion here.

In brief: The High Court has reaffirmed the importance of abiding by what is generally known as the 'implied undertaking' not to use documents received by way of discovery or other compulsory court processes for any purpose other than the conduct of the proceedings in which they were produced. Partner Alex Cuthbertson (view CV) reviews the Hearne v Street¹decision, which provides guidance on the scope of the implied undertaking, both as to whatis caught and who is bound by the obligation. 

• Key points
• Background
• The decision

KEY POINTS

The High Court has confirmed that the implied undertaking is in fact a substantive obligation imposed by law. It is the 'condition' upon which documents are made available to a party to litigation. The expression 'implied undertaking' derives from the historical origin of the principle. There is nothing voluntary about the 'undertaking' and it is not to be likened to a term implied in a contract between the parties to the litigation. Rather:

it is an obligation to the court, not the other party, which is implied. It is for that reason that its breach is treated as contempt. The obligation is imposed as a matter of law.2

The implied undertaking applies to all documents and information that one party to litigation is compelled, whether by reason of a rule of court, a specific order of the court or otherwise, to disclose, including:

• documents inspected after discovery;
• answers to interrogatories;
• documents produced on subpoena;
• documents produced for the purposes of taxation of costs;
• documents produced under a direction from an arbitrator;
• documents seized under an Anton Pillar order;
• witness statements served under a judicial direction;
• affidavits; and
• expert reports.³

The primary person bound by the implied undertaking is the litigant who receives documents or information from the other side according to litigious processes. However, the obligation would be of very limited protection if it were only personal to the litigant. Therefore, the implied undertaking extends to third parties, including a litigant's solicitor and barrister, expert witnesses, officers and agents of a litigant, and any other person who receives relevant material with the knowledge that it was generated in legal proceedings.⁴ The majority specifically noted that litigation funders who receive documents and information will be bound by the obligation.⁵

A third party who uses relevant documents for any purpose other than the conduct of the legal proceedings in which they were produced will be guilty of contempt of court so long as it is proved that the third party knew that the material originated in legal proceedings. It is not necessary to prove knowledge of the implied undertaking and its consequences.⁶

An important issue that remains unresolved is the scope of the concept of 'use of a document for purposes other than the conduct of the legal proceedings'.⁷

The implied undertaking is usually released once the relevant material is tendered or read in open court.