Did you know? There is an implied undertaking that provides that documents obtained in legal proceedings are only allowed to be used for their intended purpose and not for anything else. The implied undertaking is called the “the Harman Undertaking”. It is a fundamental rule that applies to all parties in Australian courts and tribunals.
There are five main points of the Harman Uundertaking:
- It applies to everyone involved in a case, including anyone who receives the documents covered by the undertaking, like witnesses, experts, and funders.
- Only the court can release someone from this undertaking, even if the other party agrees to let the documents be used.
- It applies to all Australian courts and tribunals.
- It covers different types of documents and information.
- Violating the undertaking can have serious consequences, such as being held in contempt of court or having claims based on those documents dismissed.
The implied undertaking covers a range of documents, including:
- documents examined following disclosure;
- responses to interrogatories;
- witness statements;
- documents produced under subpoena;
- documents provided in compliance with a court order; and
- affidavits.
Additionally, the undertaking extends to copies of these documents and any information derived from them.
Breaches of the implied undertaking can happen in several ways. For example, using documents from one case in another case, even if it involves the same parties and issues, or adding a completely new claim to an ongoing case. Other breaches include giving documents to the media, using them to gain a business advantage, or sharing them with third parties.
A recent example of a breach of the Harman Undertaking occurred in the Bruce Lehrmann defamation lawsuit against Network Ten and Lisa Wilkinson. After the case was closed pending Justice Lee’s decision, it was reopened at the request of Network Ten and Wilkinson as it was revealed that Lehrmann had shared over 2,300 pages of private messages between Brittany Higgins and her partner with a producer of Channel Seven’s Spotlight program. Lehrmann had received these documents under subpoena in a previous criminal proceeding he was involved in. Even though the material was not admitted into evidence during the criminal proceedings, Lehrmann sharing it constituted a clear breach of the Harman Undertaking. Justice Lee did not impose any direct punishment on Lehrmann; however, his Honour advised Network Ten and Wilkinson that they could pursue Lehrmann for the breach.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
