Federal Court: March 2026

PRACTICE AND PROCEDURE

Hearne v Street obligation – documents obtained on discovery in Australian proceedings used to seek injunction in English proceedings – anti-suit injunction by English court – anti-anti-suit injunction by Australian court – anti-anti-anti-suit judgment on appeal

The central question before the Full Court of the Federal Court of Australia (Perram, Stewart and Halley JJ) in Marsh Ltd v Greensill Bank AG [2025] FCAFC 186 was the limits of the Hearne v Steet obligation. Documents which were obtained by the appellants (Marsh Ltd and Marsh Pty Ltd, together the ‘Marsh Entities’) on discovery in a proceeding in the Federal Court were then used by the Marsh Entities as the basis for an application to the High Court of England and Wales for an anti-suit injunction against the respondents, Greensill Bank AG (‘Greensill Bank’) and its insolvency administrator.

The Hearne v Street obligation—still commonly but incorrectly (from a jurisdictional and jurisprudential point of view) referred to as the ‘Harman undertaking’ (or the ‘implied undertaking’)—derives its modern expression in Australia from Hearne v Street [2008] HCA 36. It is a substantive obligation, not an undertaking (implied or otherwise). It obliges a person with documents (or information derived from documents) which were obtained by compulsory processes of court (such as discovery, subpoenas, notices to produce, court orders, etc) not to use those documents for a purpose collateral, unconnected or unrelated to the proceeding in which they were obtained, unless and until the documents are referred to in open court or the court specifically releases the person from the obligation. It binds not only the party to the litigation who obtained the documents, but also any third party into whose hands the documents come if that third party has actual knowledge the documents derive from compulsory court processes.

Facts

Marsh Ltd was engaged by Greensill Bank, pursuant to a letter of engagement which contained an exclusive English jurisdiction clause. Greensill Bank entered insolvency and an administrator was appointed. Various proceedings by various applicants were commenced in the Federal Court making insurance claims in respect of the insolvency of Greensill Bank (collectively, the ‘Greensilll Proceedings’). The various Greensill Proceedings were being case-managed together and orders were made that documents produced in one such proceeding would be available to parties in all of the other proceedings.

Marsh Ltd (but not Marsh Pty Ltd) was joined to certain of the Greensill Proceedings and obtained access to documents discovered by Greensill Bank and its insolvency administrator. Greensill Bank and its insolvency administrator then gave notice of intention to join Marsh Ltd to certain of the other Greensill Proceedings on foot.

Marsh Ltd wished to avoid being joined to further of the Greensill Proceedings and determined to seek an anti-suit injunction to do so. The exclusive English jurisdiction clause in the letter of engagement between Marsh Ltd and Greensill Bank caused Marsh Ltd to consider the High Court of England and Wales (and not the Federal Court of Australia) the proper forum, notwithstanding the anti-suit injunction was intended to prevent joinder to an Australian proceeding. Marsh Ltd disclosed the discovered documents to Marsh Pty Ltd and, together, the Marsh Entities used certain of this discovered material in making an ex parte application for the anti-suit injunction to the Anglo-Welsh Court. The Marsh Entities did so in the belief they owed a duty of full and frank disclosure to the Anglo-Welsh Court on an ex parte application, including as to documents adverse to their case (which some of the discovered documents were). The anti-suit injunction was granted.

The respondents then commenced an application for an anti-anti-suit injunction in the Federal Court seeking a declaration the Marsh Entities breached the Hearne v Street obligation in their use of the discovered documents to obtain their anti-suit injunction from the Anglo-Welsh Court. The trial judge found the Marsh Entities breached the Hearne v Street obligation and made the prayed declaration. (Thereafter, the Anglo-Welsh Court held the Marsh Entities’ failure to disclose their breach of the Hearne v Street obligation was a serious and substantial breach of their duty of candour, and discharged the anti-suit injunction in respect of most, but not all, of the periods of the parties’ relations which it had covered.)

The Marsh Entities appealed to the Full Court.

Decision

The Full Court, in a unanimous judgment, held the appellants did not breach the Hearne v Street obligation. (In effect, then, an anti-anti-anti-suit judgment.) The Court surveyed the authorities (from Hearne v Street itself through, relevantly, Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345, Deputy Commissioner of Taxation v Karas [2012] VSC 143, Gavan v FSS Trustee Corporation [2019] NSWSC 667, Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 and Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129) wherein the scope of the permitted use of documents and information consistent with the obligation had been considered. Each use slightly different language and formulations thereof. The Full Court concluded (at 57]):

‘In our view, a formulation of the relevant test that is directed at a purpose that is “connected with” or “related to the determination of” a “dispute” between the parties, rather than at a purpose that is confined to the use of the disclosed documents or information in the specific proceeding in which it was disclosed, produces a test that is better placed to capture the “purpose … for which [the discovery] was given” as stipulated in Hearne v Street’ (at [96]).

The trial judge had drawn a distinction between, on the one hand, the impermissible use of the discovered documents and information in an anti-suit injunction in another court to prohibit joinder and, on the other hand, the permissible use in a stay application in the Federal Court itself (following joinder). However, the Full Court was not persuaded there was substantive difference between an anti-suit injunction and a stay in terms of whether the Hearne v Street obligation was breached. There is, of course, a formal distinction between an anti-suit injunction (commenced by way of a different proceeding) and a stay (applied for in the instant proceeding), and ‘[a]lthough stay applications and anti-suit injunctions are not governed by the same principles, both, in effect, seek to resolve a jurisdictional conflict and determine the appropriate forum for a dispute to be litigated’ (at [59]). Further, the Full Court stated:

‘Viewed through the lens of the purpose of the conduct of a proceeding, we see no substantive difference between asking a Court to stay a proceeding and thus refrain from exercising jurisdiction in relation to a claim, and asking another Court by way of an anti-suit injunction to prevent a party from causing a Court to exercise jurisdiction in relation to a claim. Both purposes are directed at the “conduct of” a proceeding in the Court. The conduct of a proceeding necessarily encompassed claims to be advanced in the proceeding, and this, in turn, directs attention to both the claims that are permitted to be pursued and the claims that are not permitted to be pursued in the proceeding’ (at [61]).

Thus, the use of the discovered material by Marsh Ltd in complying with its obligation of full and frank disclosure in applying for the anti-suit injunction was not, in fact, in breach of the Hearne v Street obligation. What was permitted of Marsh Ltd ‘would equally be permitted to Marsh Pty Ltd’ in its participation in that application for the anti-suit injunction (at [63]), noting that no employees of Marsh Pty Ltd had actually been given access to the discovered material. Accordingly, the appeal was allowed and the declaration by the trial judge set aside.

Significance

This decision is significant for confirming the use of documents and information covered by the Hearne v Street obligation is not, as such, limited to the very proceeding in which they were obtained. It may extend to other proceedings in other courts, countries and even where seeking to prevent the exercise of jurisdiction by a court (i.e. by anti-suit injunction).

It is also significant for confirming the boundaries of permissible use of documents and information covered by the obligation are determined by whether the purpose to which they are put is connected or related to the determination of the dispute between the parties to the primary proceeding. Given the consequences for breach of the obligation (which include contempt of court), where circumstances allow (as they did not in the instant case), practitioners should seek release from the obligation by the court in which the documents were obtained before using them in other proceedings, and put the issue of the Hearne v Street obligation beyond doubt.

PRACTICE AND PROCEDURE

Application to be represented otherwise than by a legal practitioner with a practicing certificate – lack of objectivity and independence  – application to intervene – applicant is referenced as a primary bad actor in the proceedings

The proceedings in Hillier v Martin (No 23) [2026] FCA 56 generated a highly protracted interlocutory history, with numerous interlocutory judgments and over 250 filed documents on the court file.

The underlying litigation concerns alleged commercial misconduct related to a joint business venture purportedly agreed to in November 2014. The applicant, James, alleged misconduct by the respondent, Victoria, and her husband, Thomas, both in implementing a plan to take control of the assets and businesses in the joint venture, and in subsequently participating in an additional conspiracy and pursuing oppressive legal proceedings aimed at denying James and Craig, another member of the joint venture, entitlements under the joint venture (at [30]).

It was further alleged Victoria engaged in misleading or deceptive conduct by making certain equity representations, which were said to have been made by Thomas while acting as her agent (at [30]). The claims were also framed as constituting fraud, undue influence and economic duress (at [10]).

The trial had been fixed to start on 8 April 2026 with a four-week estimate. On 2 February 2026, the Court heard outstanding interlocutory applications, including an:

• application filed on 9 July 2024 by Victoria for targeted discovery from James (at [3]);
• application filed on 28 January 2026 by Victoria for orders:

1. 1. she be permitted to be represented by Thomas who is legally qualified but does not hold a current practising certificate;
   2. to vacate existing case management and trial orders; and
   3. the trial proceeds first with determination of separate questions (at [6]); and

• application filed on 28 January 2026 by Thomas for leave to intervene pursuant to rule 9.12 of the Federal Court Rules 2011 (Cth) (‘FC Rules’), asserting a substantial personal interest in the litigation and contending he is extensively referenced in pleadings and should be permitted to participate in the proceeding (at [10]).

Victoria had been unrepresented in the proceeding for several years. She appeared remotely at the hearing but was distressed and struggled to present her case. The Court accepted medical evidence she was not presently fit to continue attendance due to health and care obligations for a child with intense special needs (at [4]).

Thomas, though previously admitted as a legal practitioner, did not hold a current practising certificate and was not a party to the proceeding.

Targeted discovery

Victoria relied on her affidavit of 9 July 2024. Despite the considerable lapse of time, the solicitor for the applicant did not provide a responding affidavit until 30 January 2026. Consequently, the Court did not permit it to be read. The discovery application related to documents connected with separate proceedings initiated by the applicant in the District Court of South Australia. While the applicant produced some relevant documents, Victoria submitted that additional documents existed and, in the absence of an affidavit, she was unable to properly challenge broad claims of legal professional privilege.

McElwaine J encouraged the applicant to adopt a practical approach, noting that the cost of preparing an affidavit would be negligible in the context of the proceedings and ordered the applicant to file and serve a supplementary affidavit within seven days to resolve the application dated 9 July 2024. Accordingly, his Honour declined to grant the relief sought in that application (at [5]).

Representation by Thomas

The application for a representation order was based on Victoria’s medical incapacity to continue participating in the proceedings, her responsibilities in caring for her son, the personal impact the litigation has had on her, her inability to obtain legal representation and an injunction issued by Charlesworth J on 29 March 2022. That injunction restricts Victoria from dealing with the business assets or income in dispute other than for ordinary business expenses. The injunction has been extended and amended on several occasions. Of particular significance, on 17 August 2022, Charlesworth J varied the injunction to permit payments for work performed by up to two directors across companies operating under the Nordburger brand, with such payments capped at $500 per week (at [7]).

The applicant opposed the representation order. His submissions proceeded on the assumption Thomas sought to represent Victoria in his capacity as a legal practitioner, despite not holding a current practising certificate. However, Thomas made it clear this was not the basis of the proposed representation and he did not assert any entitlement to appear as a legal practitioner. Therefore, the question for determination was whether, as an exercise of discretion, Victoria should be permitted to be represented by Thomas (at [8]).

His Honour noted that rule 4.01 of the FC Rules ordinarily governed representation by qualified legal practitioners, and the Court’s general power under section 23 of the Federal Court of Australia Act 1976 (Cth) and rule 1.34  of the FC Rules may allow dispensation in appropriate circumstances.

However, his Honour emphasised efficient administration of justice and the overarching purposes of the Federal Court must be paramount and permitting a non-lawyer advocate (even a legally admitted but currently uncertified one) required caution, particularly in complex commercial litigation.

The critical factor was Thomas’ objectivity and independence (at [10]). He:

• confirmed he would be a witness at the trial;
• provided an affidavit disclosing extensive personal interests, asserting the proceedings had been brought to ‘unfairly malign’ his character;
• accepted his personal interests aligned with Victoria’s outcomes; and
• accepted his personal involvement and conflict of interest meant the Court lacked confidence in his ability to act impartially.

The Court found permitting Thomas to act as Victoria’s advocate would undermine the requirement that an advocate act objectively, independently and in the interests of justice regardless of their qualifications or personal commitment. The application was therefore refused (at [11]).

Vacating case management and trial orders/separate questions

Victoria’s related applications to vacate existing case management orders and the scheduled trial, and to proceed first by determination of separate questions, were also rejected. His Honour observed no substantive basis had been identified in evidence or submissions warranting such relief. Given the extensive pre-trial history and the impending trial date, further delay was not justified. The litigation concerned events dating back to December 2012, with central factual and legal disputes requiring detailed forensic analysis that could not be resolved by early separate questions (at [14]).

Intervention application by Thomas

With respect to Thomas’ application to intervene in the proceedings, the Court allowed the supporting affidavit to be read, although it contained elements of submission rather than evidence (at [16]).

Thomas sought leave to intervene under rule 9.12 of the FC Rules, along with orders vacating existing case management and trial orders to allow him to pursue further interlocutory applications (at [17]). He argued he was central to the allegations pleaded by James, which accused him of conspiring with Victoria and others to deprive James of his joint venture interests, thereby placing his reputation at risk. Thomas contended the seriousness and pervasiveness of the allegations justified granting him rights equivalent to a party (at [18]).

The applicant opposed the application, submitting that reputational concerns alone do not justify intervention, that Thomas lacked independence and objectivity, and that his involvement could disrupt the efficient conduct of the proceedings. Reliance was also placed on previous decisions where Thomas was found to lack standing or to have engaged in inappropriate conduct in the litigation. The applicant further argued that Thomas’ proposed role in the proceedings was unclear and potentially expansive (at [19]).

The Court reviewed the principles in Levy v Victoria [1997] HCA 3 governing intervention, noting that intervention is discretionary and must promote procedural fairness, while ensuring any contribution from an intervener is useful and does not unreasonably interfere with the parties’ conduct of the case (at [21]). The Court emphasised an intervener does not obtain the full rights of a party and participation may be limited or subject to conditions (at [23]).

While the Court accepted that a mere reputational interest is generally insufficient to justify intervention, it recognised the circumstances of this case were distinct. Thomas was repeatedly referenced throughout the extensive statement of claim and was alleged to have played a central role in the events underpinning the proceeding. The Court considered it surprising Thomas had not been joined as a party at an earlier stage (at [31]).

The Court rejected preliminary submissions Thomas lacked sufficient interest to seek intervention and declined to refuse the application based on his prior conduct or alleged lack of objectivity (at [34]).

However, the Court did not determine the merits of the application at that stage. Instead, it directed James to file a responding affidavit within two business days which might lead to further interlocutory applications (at [35]).

Dr David J Townsend is a barrister in 3rd Floor Wentworth Chambers. Paris Hart is a barrister in Sir Anthony Mason Chambers.