Harrington and Pacific National Services Pty Ltd (Compensation)

The Administrative Appeals Tribunal (AAT) considered an application by Pacific National Services Pty Ltd (the applicant) for release from the implied undertaking of confidentiality that attaches to documents produced in discovery in the matter of *Harrington and Pacific National Services Pty Ltd (Compensation)*. The applicant sought to use documents obtained during the compensation proceedings in separate litigation concerning alleged breaches of contract and misleading and deceptive conduct.

The primary legal issue before the Tribunal was whether to grant the applicant leave to use documents, which were subject to the implied undertaking of confidentiality, in separate proceedings. This required the Tribunal to balance the applicant's need to access and use relevant evidence against the respondent's legitimate expectation of privacy and the protection of confidential information.

The Tribunal applied the principles established in cases such as *Hearne v Street* and *John Fairfax & Sons Ltd v Police Tribunal of New South Wales*. Senior Member Dr Stewart Fenwick noted that the implied undertaking is not absolute and can be released by the court or tribunal that made the discovery order, or by a superior court. The Tribunal considered the nature of the documents, the potential prejudice to the respondent if release were granted, and the public interest in the administration of justice. The Tribunal found that the applicant had demonstrated a sufficient need for the documents in the separate proceedings and that the prejudice to the respondent could be adequately managed through appropriate undertakings and orders.

The Tribunal ordered that the applicant be released from the implied undertaking of confidentiality in respect of the specified documents, subject to certain conditions, including that the documents be used solely for the purpose of the separate proceedings and that they not be further disclosed without leave of the Tribunal or the court hearing the separate proceedings.