By Henry Holland, Special Counsel

The Full Court of the Federal Court of Australia has clarified the scope of the Hearne v Street obligation (also known as the Harman undertaking).

The Hearne v Street obligation stipulates that where one party to litigation is compelled to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

Key Points

In Marsh Limited v Greensill Bank AG [2025] FCAFC 186, the Full Court of the Federal Court has clarified that:

• in the absence of leave, documents obtained under compulsory court processes cannot be used for any purpose other than that for which the discovery was given;

• the “purpose” of discovery is not confined to the specific proceeding in which documents are produced; and
• the obligation permits use where there is a sufficient connection to the same underlying dispute, including related proceedings and forum contests.

Background to Marsh v Greensill Bank

The Federal Court proceedings concern claims against Insurance Australia Limited in respect of claimed losses of approximately AUD $7 billion that the applicants allege are payable under insurance policies.  The claimed losses relate to debts owned to Greensill Capital (UK) Limited by its customers under purported supply chain or accounts receivable finance facilities.

The central question for determination in the appeal was whether the appellants, Marsh Limited and Marsh Pty Ltd (together, Marsh entities), breached the Hearne v Street obligation by using documents discovered to Marsh Limited in proceedings in the Federal Court of Australia in an anti-suit proceeding brought in the High Court of Justice of England and Wales.

The Marsh entities commenced the anti-suit proceeding in the High Court of Justice of England and Wales on an ex parte basis, seeking to restrain the respondents from joining them to proceedings in Australia.

The primary judge held that the Marsh entities breached the Hearne v Street obligation by using the documents discovered in the Federal Court proceedings in support of the anti-suit application.  In doing so, the primary judge characterised the purpose for which the documents were produced as being for the conduct of the Federal Court proceedings.  The primary judge was not satisfied that it was appropriate to grant the Marsh entities a retrospective release from that obligation.

The Full Court’s Approach to “Purpose”

In overturning the primary judge’s decision, the Full Court of the Federal Court rejected the narrow, proceeding-bound view, and held that the use of discovered documents from Federal Court proceedings by the Marsh entities in the anti‑suit proceeding did not breach the Hearne v Street obligation.

The Full Court held that:

• Hearne v Street speaks of the purpose for which the discovery was given, not the specific proceeding in which it was produced;
• the application of the test will turn on the specific factual context in which the documents have been produced; and

• later authorities support a broader test: whether the use is connected with, or related to, the determination of the dispute between the parties, and directed to resolving that dispute, even where it occurs in another proceeding or forum.

No Breach of Hearne v Street Obligation

On that analysis, the Full Court held that the purpose for which the discovery was given extended to the conduct and resolution of the broader dispute between the parties, which included the contest over forum.

The English anti‑suit application was directed at that same dispute, which meant that the use of the discovered documents was not a collateral or ulterior use, but fell within the purpose for which the documents had been compelled.

Practical Implications for Litigants

• Broader, dispute‑centric test: The Hearne v Street obligation is not necessarily confined to the original proceeding. The focus is whether the proposed use is connected with, and directed to, resolution of the same underlying dispute.
• Related proceedings and forum contests: Using discovered documents in related domestic or foreign proceedings (including anti‑suit or stay applications) may be permissible if they form part of the same dispute between the same parties.
• Fact‑specific analysis remains critical: Where the link between proceedings is weaker, or the documents are used for any purpose other than resolving the same dispute, the risk of breaching the Hearne v Street obligation remains.
• Still prudent to seek leave: Despite the outcome in Marsh, there remains a risk of proceeding in foreign ex parte applications without clarifying the reach of Hearne v Street or seeking a release from the obligation.

This decision gives parties more flexibility in using discovered material in related proceedings but reinforces the need for careful, early advice on the Hearne v Street obligation in cross‑border litigation.