See the full series on Subpoenas for Production and Notices of Non-Party Disclosure: Part 1 – Introduction; Part 2 – Relevance and Privilege; Part 3 – Using Documents for Other Purposes; Part 4 – Recovery of Costs and Negotiations.
Using Documents Produced for Other Purposes
Leave of the Court is required before a party to an action can be released from the implied undertaking not to use discovered documents for any purpose outside the scope of the action in pursuance of which they were disclosed, even to further a criminal prosecution.[1]
Having seen the documents it may be apparent that the documents could be used for the purposes of joining a third party to the action, including where the documents were received from that third party. The Court will grant permission to use such documents where special circumstances exist, and that includes the situation where there is a degree of commonality between the proceedings.[2] There is no scope for a party to use such information in separate proceedings without leave of the court. There is no reason to doubt that the same rule applies to prevent amendment of the pleadings to add a new cause of action or to add a new defendant to an existing cause of action, though the position in relation to these matters is less straightforward. The Western Australian Court of Appeal noted that:[3]
The nature and extent of the connection between the proceedings in which documents are produced under compulsion and the proceedings in which a party seeks leave to be able to use them is undoubtedly a relevant matter. In some cases, the closeness of that connection will mean that there is no need for leave to be granted. But the existence of a close connection is not a necessary foundation for a grant of leave.
Given the threat of being in contempt of court if there is a breach of the implied undertaking, disclosing the potential use to the party concerned and seeking guidance from the court is appropriate.
[1] Bailey v. Australian Broadcasting Corporation [1995] 1Qd R 476
[2] Sweetman v Australian Thoroughbred Finance Pty Limited (23 July 1992, not reported); Re Springfield Nominees Pty Ltd [1992] FCA 472
[3] Murray Riverside Pty Ltd -V- Toscana (Wa) Ravenswood Estate Pty Ltd [2022] WASCA 67 at [97]