The absence of a 'reasonable relation' between the proceedings in which documents were compulsorily produced and the proceedings in which a party seeks to use them is a relevant but not determinative factor in the assessment of whether special circumstances exist to justify release from the Harman obligation. The passage in Hearne v Street (2008) 235 CLR 125 at [107] adopting Hobhouse J's observation in Prudential Assurance does not establish that absence of prejudice to the disclosing party is a precondition to the grant of leave. Where a breach of the Harman obligation was inadvertent and the documents are reasonably required for the purpose of doing justice, leave nunc pro tunc may be granted. A party's solicitor who refuses to engage in oral conferral and instead seeks to weaponise an alleged failure to confer cannot rely on the absence of conferral to defeat the other party's application.
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