All participants in any Court or Tribunal proceedings, including the parties, legal representatives, witnesses or other third parties, give an implied undertaking to the Court or Tribunal to keep all documents and information in that proceeding confidential.
This undertaking is known as the ‘Harman Undertaking’, named after the case from which the principle arises, a United Kingdom case titled Harman v Secretary of State for the Home Department [1983] 1 AC 280, which was endorsed by the High Court of Australia in the 2008 decision of Hearne v Street (2008) 235 CLR 125.
The Court in Hearne v Street found that where a party is compelled to disclose documents or information in a proceeding, the parties obtaining that disclosure cannot use it for any other purpose unless they have obtained leave from the Court to do so or the document or information is read into evidence.
The objective of the Harman Undertaking is to ensure that documents and information disclosed in a proceeding by compulsion, either by way of discovery or pursuant to an order of the Court, are protected and not used for an ulterior purpose. The court recognises the importance of protecting confidentiality and potentially sensitive information.
The Harman Undertaking is implied. Not knowing about it does not mean you are not bound by it.
It binds all parties to a proceeding and anyone else who receives the documents for the purpose of the proceeding. For example, if a party engages an expert to prepare a report and provides them with discovered documents, the expert is also bound by the Harman Undertaking.
The Harman Undertaking is an undertaking to the Court. This means that a person will require leave of the Court for the undertaking to be released and to allow them to use the documents or information outside of the proceeding. The undertaking cannot be released by the person who the document or information belongs to.
The Harman Undertaking ceases to apply to a document once it is read into open Court. This is because the document has officially become a public record and is no longer protected.
If you have concerns about your confidential information in a Court proceeding or how the confidentiality undertaking applies to you, please contact our dispute resolution team.
