Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Limited v Yu (No 2) [2020] NSWSC 1915 Hearing dates: 16 December 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Common Law Before: Campbell J Decision: I reject the affidavit of 15 December 2020 Catchwords: CIVIL PROCEDURE – objection to parts of affidavit being read – consideration of the Harman undertaking and the principles in Hearne v Street – whether party who comes into possession of documents covered by the implied undertaking not entitled to use them in separate proceedings – affidavit rejected Legislation Cited: Not applicable Cases Cited: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Texts Cited: Not applicable Category: Procedural and other rulings Parties: Allianz Australia Insurance Limited (Plaintiff) Soo Yeon YU (Defendant) Hyun Sook Chung (Respondent) Representation: Counsel: J. Catsanos SC (Plaintiff) P. Berg (Defendant) Solicitors: Sparke Helmore (Plaintiff) Cambridge Lawyers Campsie (Defendant) No appearance (Respondent) File Number(s): 2020/232929 Judgment 1. I am hearing an application for the continuation of an asset preservation or freezing order made by Wright J on 11 December 2020. Mr Berg of counsel, who appears for the defendant, has read two affidavits of his client, the first affirmed on 11 December 2020, and the second on 15 December 2020. 2. Mr Catsanos of Senior Counsel for the plaintiff has objected to the second. The whole content of that affidavit is the annexure of a subpoena issued out of the District Court and the document produced in response to it. The basis of Mr Catsanos's objection is that the evidence constitutes a breach of the so-called Harman v Secretary of State for Home Department [1983] 1 AC 280 undertaking. Mr Berg joins issue with that proposition relying upon a passage from the well-known High Court authority of Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96]. That passage, in terms, states: Where one party to litigation is compelled … to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. 1. From that statement, Mr Berg extrapolates that in the present case it was the defendant, who Mr Catsanos effectively represents, to the District Court litigation which compelled the disclosure of the documents, not his client and, therefore, his client can make such use of them as he sees fit. I should say the parties to that District Court litigation were the defendant's estranged wife, Ms Chung, and the insured of Mr Catsanos's client, Allianz Australia Insurance Limited. 2. There is no question that Mr Berg's client came into possession of the documents through his wife and, therefore, as I put it in the course of discussion, his possession was derived through her. 3. I accept Mr Catsanos's submission that the statement that Mr Berg relies upon should not be taken to be an exhaustive statement of the principle which governs the so-called implied undertaking. It extends beyond discovered documents or documents the party has been compelled to produce under subpoena, to documents exchanged during the course of case management, such as affidavits or witness statements, and to documents which have been produced by a third party under the compulsion of the court's processes. 4. In my judgment, a party who did not issue a subpoena to a stranger to the litigation, but who obtains access to, including copies of, the documents produced is equally bound by the implied undertaking as the party who caused the subpoena to be issued. It is also my view that the important principle cannot be circumvented by a stranger to the litigation who comes into possession of documents, otherwise covered by the undertaking, using those documents in separate proceedings or for any other purpose with impunity. 5. I, with respect, reject Mr Berg's submission and uphold the objection. I reject the affidavit of 15 December 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020