Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5]

In the case of Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5], the applicants sought leave to use documents obtained through subpoenas in another proceeding in the current matter. The respondents opposed the application on the basis that the documents were subject to a Harman obligation, which restricts their use to the purpose for which they were disclosed. The primary issue for the court was whether there were special circumstances that would justify departing from the Harman obligation and allowing the documents to be used in the current proceeding.

The court considered the nature of the Harman obligation and whether it survived the documents being admitted into evidence. While the court acknowledged that this issue had not been definitively resolved in Australian jurisprudence, it concluded that the better view was that the Harman obligation ceases when the document is received in evidence and marked as an exhibit or read out in open court. The court also noted that the obligation ceases when a document is filed or referred to in court, making it accessible to the public, or when the document has already entered the public domain.

The court found that there were no special circumstances present in this case that would warrant departing from the Harman obligation. The applicants had not demonstrated any unique feature of the case that would justify modifying or releasing the obligation. Consequently, the court granted the applicants leave to use the documents in the current proceeding, subject to the condition that they were used only for the purpose for which they were disclosed.

In summary, the court granted the applicants leave to use the documents in the current proceeding, finding that there were no special circumstances that would warrant departing from the Harman obligation. The court noted that the obligation ceases when the document is received in evidence and marked as an exhibit or read out in open court, or when the document has already entered the public domain. The applicants must use the documents only for the purpose for which they were disclosed.