Documents produced under subpoena and the implied undertaking as to use

In relation to the Herald’s reference to the content of documents produced, presumably, under subpoena in the Craig Thompson defamation case the following principles appear relevant.

Giles JA said:

5 Under what is sometimes called the principle in Harman v Secretary of State for the Home Department (1983) 1 AC 280, the information in the documents obtained from the third parties by the Court’s compulsory process of subpoena was subject to an implied undertaking that the information would not be used for any purpose other than the proceedings in which the documents were obtained. The principle is well-established, and the undertaking was taken to extend to the claimants. They were understandably concerned that compliance with the s 264 notices would breach their undertakings, but also that they should not incur the penalty for non-compliance provided in s 8C of the Taxation Administration Act 1953 (C’th).

Blanch & Ors v Deputy Commissioner of Taxation [2004] NSWCA 461

Halsburys Laws of Australia says:

[325-7605] Undertakings as to use Any inspection of documents produced under subpoena carries with it an implied undertaking not to use the documents or information contained therein for purposes not directly connected with the conduct of the litigation,1 and to protect the confidentiality of the documents.2 In some circumstances, express undertakings will be required as to the purposes for which the documents will be used and the persons who will inspect them.3 A use of subpoenaed documents contrary to these undertakings may be restrained by injunction or punished as a contempt of court.4 The undertakings no longer apply:

(1) when the documents concerned are produced and admitted in evidence5 or read out in open court;6

(2) when leave is given by the court for use of a subpoenaed document for a new purpose;7 or

(3) when the person from whom the document was subpoenaed consents.8

The undertakings continue to apply in later proceedings even if the relevant documents are therein discovered.9


[325-7610] Release from undertakings A court will release or modify the implied or express undertakings given upon inspection ofsubpoenaed documents only in unusual circumstances and where release is in the interests of justice.1 In some circumstances, legislation will override such undertakings and, if so, a release is not necessary.2


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