Confidentiality in court – when is the implied undertaking sufficient?

Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136

Litigation almost always involves the disclosure of more information than the parties would prefer. Corporate litigation in particular throws up issues of commercial sensitivity on a regular basis, particularly where the litigants are not only fighting in court but in the marketplace.

In a decision handed down in mid last year, the Supreme Court of Queensland outlined the test for determining when a court will impose a more onerous obligation than the implied undertaking in respect of confidential documents. The implied or 'Harman' undertaking is a substantive legal obligation not to use documents or information obtained in litigation for a purpose unrelated to the conduct of the proceeding in which it was obtained.