The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 3)

The Checkout Pty Ltd, the applicant, sought an order for a Harman undertaking from Cordell Jigsaw Productions Pty Ltd, the respondent, concerning the use of a document produced on subpoena by a third party in the ongoing proceedings. The dispute centred around whether the Harman undertaking, which typically restricts the use of documents obtained through subpoena, should be extended to cover the document in question. The matter was heard in the Federal Court of Australia.

The court needed to determine whether the Harman undertaking could be applied to the document in question, which had been produced by a third party and adduced in evidence in the ongoing proceedings. Additionally, the court had to decide if there were special circumstances that would justify the use of the document in the proposed defamation proceedings, which the applicant intended to commence in the Defamation List.

The court considered the nature of the document and the circumstances in which it was produced. It found that the Harman undertaking did not extend to the document in question as it was produced by a third party and not directly by the respondent. Furthermore, the court held that the document could be used in the proposed defamation proceedings due to the special circumstances, including the relevance of the document to the defamation claim. The court concluded that the applicants' reliance on the document was justified under the circumstances.

The court issued an order allowing the applicant to use the document in the proposed defamation proceedings but required the applicant to provide a written undertaking to the respondent regarding the use of the document. This order balanced the need for the applicant to proceed with its defamation claim while also protecting the respondent's interests concerning the document in question.