Parties to a litigation in Australia are bound by an implied undertaking not to use documents that they have obtained through compulsory process of the Court for purposes other than in the case before the Court unless the Court gives them permission otherwise. This is called a Harman Undertaking which is named after the English case that espoused that principle, Harman v Secretary of State for Home Department  1 AC 280.
More recently, it was expressed by the High Court of Australia in Hearne v Street (2008) 235 CLR 125, where the Court held that:
‘Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.’
The reasons for the undertaking are to encourage full and frank disclosure between parties, acknowledge that the compulsion to produce material is a proceeding can violate a party’s right to confidentiality and to strike a balance between the need to protect the party’s confidentiality and the compulsory nature of the court process.
So, who are bound by such an undertaking you may ask. Other than the parties to a litigation themselves, any third party who receives documents produced under compulsion including witnesses, usually experts, and non-party funders are all bound by the undertaking, and there may be serious consequences for breaching the obligation as it is considered contempt of court to do so without permission.
Whereas a court can grant permission for the person to release such documents to third parties not involved in the litigation, it depends on a number of factors such as the nature of the document and the information it contains, the circumstances the documents came into existence and public interest in making the documents available for the other purpose.
If you need to use documents received in proceedings for a purpose other than the actual case in which they were received in, make sure to seek legal advice as to the prospects of the Court granting permission to use them outside of the case before you make an application.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.
Special Counsel | Accredited Family Law Specialist NSW
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