The Court granted nunc pro tunc release from both the Harman/Hearne v Street implied undertaking and s 27 of the Civil Procedure Act 2010 (Vic) to permit use of subpoenaed documents in a related proceeding between the same parties, applying the Springfield Nominees 'special circumstances' test. The Court held that it was inappropriate to use documents subject to the implied undertaking or s 27 simultaneously with seeking leave, rather than obtaining leave first, and that applications for release must be brought in the proceeding in which the documents were produced under compulsion. The Court left open but did not finally resolve whether s 27(1) applies to documents produced on subpoena by a former legal representative (as distinct from disclosure under the s 26 overarching obligation), noting the question of whether subpoenaed documents are 'critical documents' within s 26 was not argued.
The full text is available to signed-in members.