The Harman Undertaking and Publicly Available Pleadings

In Jones v Treasury Wines Estates Limited: In the Matter of Treasury Wine Estates Limited (No 4) [2020] FCA 1131, the High Court of Australia ruled that the Harman undertaking did not apply to publicly available pleadings containing information taken from discovered documents (being information ordinarily subject to the Harman Undertaking), that were used to prepare a statement of claim (SOC) in fresh proceedings.

Background

Treasury Wine Estates Limited (TWE) was the defendant in a proceeding commenced by the plaintiff under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the Act) on 2 July 2014 (Jones Proceeding). TWE was also the defendant in a class action proceeding commenced in the Supreme Court of Victoria which commenced on 1 May 2020, by Steven Napier (Napier Proceeding).

When preparing the Statement of Claim in the Napier Proceeding in 2020, the solicitors and Counsel for the plaintiff utilised the information set out in the Further Amended Statement of Claim and the Second Further Amended Defence (being information obtained from discovery) filed in the Jones Proceeding in July 2017, that were publicly available (together, Jones Pleadings).

TWE sought to stay the Napier Proceeding on the basis that, by using of the information contained in the Jones Pleadings to prepare the Napier SOC, the plaintiff’s solicitors and counsel breached the implied obligation owed by them to the Court ‘to not use or allow documents obtained from TWE in the course of discovery in the Jones Proceeding for any collateral or ulterior purpose of their own’, that is, the plaintiff’s solicitors and counsel had allegedly breached the Harman undertaking - Harman v Secretary of the State for the Home Department [1983] 1 AC 280.
The solicitors and counsel for the plaintiff argued, amongst other things, that no such obligation applies in the circumstances. Further, even if that were not the case, the Jones Pleadings were made publicly available on the High Court website pursuant to orders of the Court and remain on the internet. That said, the Jones Pleadings, (together with the information contained therein) were available for use by anyone worldwide from the dates that they were filed and available to download from the Court’s website. If the Harman undertaking applied in such situation, it would mean that the plaintiff’s solicitors and counsel were the only people in the world unable to use the information contained in the publicly available pleadings.

Ruling

His Honour, Foster J, made a declaration that the Harman undertaking did not apply with respect to the Jones Pleadings, or any information contained in those pleadings, (Jones information) and to the extent necessary, made orders nunc pro tunc:
1. Releasing the plaintiff’s solicitors and counsel from the Harman Undertaking to the extent that it applied or applies to the Jones information;
2. Granted leave to the plaintiff’s solicitors and counsel to use the Jones Information for the purpose of conducting the Napier Proceeding.

Key Takeaways

Pleadings (and the information contained therein) are not captured by the Harman undertaking in circumstances where there is no restriction sought or placed upon public access to the information included in those pleadings (even if that information has been taken from discovered documents) and the material is available for inspection by any member of the public.

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