Lamb v Sherman

[2021] QCA 290

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

1. Practice and Procedure
2. › Pleadings
3. › Strike out
4. › Abuse of process
5. › Whether use of documents obtained in other proceedings constituted abuse of process of the court in which defamation proceedings brought
1. Practice and Procedure
2. › Implied undertaking
3. › Documents obtained in litigation
4. › Scope of implied undertaking
5. › Whether implied undertaking applies to documents provided in mediation without court order compelling disclosure
6. › Whether practical compulsion sufficient
1. Practice and Procedure
2. › Abuse of process
3. › Categories of abuse
4. › Whether use of documents would bring administration of justice into disrepute
5. › Whether use would prevent fair and just determination of proceedings
1. Family Law
2. › Family dispute resolution
3. › Mediation
4. › Confidentiality of mediation communications
5. › Implied undertaking as to documents provided in court-ordered mediation
6. › Family Law Act 1975 (Cth), ss 10G, 10J

The implied undertaking against collateral use of documents applies only where documents or information are disclosed under compulsion (whether by rule of court, specific order, or practical compulsion of the kind recognised in [name withheld] Inc v Raychem Corporation [No 3]), and the court left open whether a letter copied to the opposing party's solicitor in the context of court-ordered mediation attracted such an undertaking.
Even if a breach of an implied undertaking to another court is established, it will not constitute an abuse of process in the court where the material is deployed unless the use would bring the administration of justice into disrepute or prevent or stultify the fair and just determination of the matter; the appropriate remedy for breach lies with the court to which the undertaking is owed.
A party who is not a party to the proceedings in which the implied undertaking arose may lack standing to complain of its breach.