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Harman undertaking or obligation arises when documents are obtained from compulsory court processes, there’s an implied undertaking or obligation to the court that the documents will only be used for purposes for which they were disclosed and not for collateral purposes unless the court grants leave.

A simple example for criminal lawyers is where the alleged victim’s evidence given in Family Court proceedings are relevant in the existing criminal case that can help the defence case to prove a client’s innocence. This often arises in domestic violence assault and AVO cases.

It may also arise in family law court proceedings where the other party has or is going through criminal proceedings which are relevant to family court proceedings. This is often used in child custody disputes.

The Harman undertaking or obligation originated from the case of Harman v Secretary of State for a home Dept [1983] 1 AC 280.

The Harman undertaking applies across all jurisdictions of the court in Australia.

How to Seek Relief From the Harman Obligation?

The Harman obligation may be dispensed with by the court (the court to which the documents were produced) if there are “special circumstances”.

For special circumstances to exist it’s enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.

There is no exhaustive list of factors that amount to ‘special circumstances’.

Special circumstances can include the nature of the documents, circumstances under which it came into existence, the attitude of the author of the documents and the prejudice the author may sustain, whether the documents pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the documents (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the documents to achieving justice in the second proceeding (Springfield Nominees Pty Ltd v Bridge Lands Securities Ltd (1992) 38 FCR 217).

Special circumstances do not require some extraordinary factors. Good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined (Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3).

Special circumstances will fairly readily be found where it’s established that the use of the documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in the other proceedings (Australian Trade Commission v McMahon (1997) 73 FCR 211 at 217).

In criminal proceedings, when documents sought to be used are relevant to an accused person’s defence, particularly if they’re relevant in establishing a positive defence, the ‘special circumstances’ test will likely be satisfied as the public interest in establishing innocence in criminal proceedings is classically recognised as a circumstance requiring the disclosure of documents within an otherwise immune class (Ex Parte Coventry Newspapers Ltd [1993] 1 ALL ER 86).

When Does the Harman Obligation Ceases to Exist?

The common law position is that the harmon obligation ceases once the material is adduced in evidence in court proceedings and becomes part of the public domain (Esso Australia Resources Ltd v Plowman (1992) 183 CLR 10; [1995] HCA 19).

But the Federal Court have produced rules on this to avoid and minimise the ambiguity or confusion. Without going into detail, these are outlined here:

  • Rule 14.11 Federal Circuit Court Rules 2001:
  • Rule 20.03 Federal Court Rules 2011
  • Rule 13.07A Family Law Rules 2004
  • Rule 21.7 Uniform Civil Procedure Rules 2005

If in doubt as to the existence of the obligation, it is best to apply to the court to which the obligation is owed for release from its terms.

What are the Consequences of Breaching the Harman Obligation?

The consequences of breaching the Harman undertaking or obligation can result in the contempt of the court to which the obligation is owed (Ainsworth v Hanrahan (1991) 25 NSWLR 155).

Breach of the Harman obligation would prohibit you from relying on the relevant documents in any way in your client’s defence (in addition to potentially committing contempt).


So what are the step that you should take?

The steps that should be taken to purge the contempt upon becoming aware were outlined in the case of United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 at 340:

(a) list the matter before the court which the obligation is owed,

(b) explain the circumstances of the breach and any use made of the documents,

(c) deliver an unreserved apology,

(d) hope the court takes no further action.

Published on 18/07/2022

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AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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