Although family law and criminal law traditionally operate in separate spheres, there are instances where the two intersect, such as when separating couples find themselves in both the Family and Criminal Courts. One important concept in this context is the Harman Undertaking – also known as the Implied Undertaking. 

The Harman Undertaking is a substantive legal obligation that prevents parties from using documents disclosed in proceedings — whether due to a rule of Court, a specific Court order, or otherwise — for any purpose other than that for which they were provided, unless the documents are received into evidence or the party is granted leave by the Court to use them in another Court. 

This protection maintains the integrity of the judicial process and protects the privacy of those whose information may be disclosed, ensuring that documents obtained during the Court process are not misused or used to prejudice other proceedings or individuals involved.

Where does the Harman Undertaking originate from?

Originating from the 1983 House of Lords case Harman v Secretary of State for the Home Department, this principle rose to prominence in Australia following the landmark case of Hearne v Street (2008) 235 CLR 125, where the NSW Supreme Court confirmed the breach of the implied undertaking when unread affidavits were improperly released to the media. Similarly, British American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571 reinforced that documents disclosed under compulsion remain confidential even when admitted into evidence. 

How might the Harman Undertaking apply to you? 

If any party involved in the litigation discloses Court documents to the media or other third parties, even after the case has concluded, this will constitute a breach of the Harman Undertaking, unless the Court has granted permission for the release of the documents. If third parties, such as journalists, knowingly receive and use these documents, they may also be liable for contempt. In today’s digital age, the temptation to share Court documents on social media or through other online platforms has made this issue even more pressing. With the rapid evolution of Court processes and digital innovation, the potential for harm has increased, as litigants and third parties alike may not fully appreciate the risks associated with such disclosures. Whether through a well-meaning but careless post or an intentional leak to the media, breaches of the Harman Undertaking can have serious legal consequences, and parties involved in legal proceedings must be cautious about how they handle and share documents obtained in the course of litigation. 

If you are involved in litigation, it is crucial to understand the Harman Undertaking and its implications. 

Key features of the Undertaking

• Scope: All parties and third parties who receive documents in a proceeding are subject to the undertaking (including witnesses, experts and non-party funders);
• Court approval: Only the Court can release a party from their implied undertaking, even if the other party has given clear consent to use the documents;
• Universal application: It applies to all Australian Courts and tribunals;
• Coverage: It applies to many types of documents and information; and
• Consequences: Breach of the undertaking can result in considerable consequences, including contempt of Court. 

The undertaking also extends to the information derived from documents and copies of those documents. 

When does the Harman Undertaking cease to exist?

There are several circumstances where the Harman Undertaking will cease to operate. If the information is already in the public domain, then the Harman Undertaking will not apply. 

Documents protected by an implied undertaking can only be used in separate proceedings with the Court’s permission. Even with the explicit and informed consent of the other party, a party to litigation cannot use these documents without the Court’s approval. An application must be made to the Court to which the obligation is owed, which means where the documents were originally produced.  That Court then has the discretion to grant or refuse a release from the undertaking and must consider whether special circumstances justify such a release, pursuant to the case law. 

Such discretion is demonstrated in cases like Spalla v St George Motor Finance Ltd (2004) 209 ALR 703 and Deputy Commissioner of Taxation v Karas [2012] VSC 143, where the documents in question were so closely related to their original purpose that they were permitted by the Court to be used in subsequent legal proceedings.

To use the documentation without the Court’s release, you are in breach of the undertaking and potentially in contempt of Court. 

Legislative portrayal of the Undertaking – rule 6.04

Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 mirrors the undertaking, requiring Court permission to use documents outside their original purpose. This codifies the implied undertaking, but in the context of Family Court documents, reinforces the importance of obtaining explicit Court authorisation prior to using documents in other Court proceedings.

Nicholes Family Lawyers have expertise advising and representing parties in matters involving a potential breach of the Harman Undertaking. Please contact our office at 03 9670 4122 to arrange an initial consultation.