Undertaking not to use documents produced or filed in one Court for any other Court proceedings.
The principle of using documents disclosed in court proceedings strictly for the purpose of those proceedings is fundamental to the administration of justice. It ensures the confidentiality of sensitive materials and encourages parties to provide full and frank disclosure without fear of misuse. This document examines the legal principles underlying this undertaking, focusing on Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, relevant case law, and the considerations courts evaluate when deciding whether to release parties from such obligations.
Table of Contents
Legal Principles
Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 states:
(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2) However:
(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
This rule reflects the implied undertaking from Harman v Secretary of State for Home Department [1983] 1 AC 280 that is often referred to as the ‘Harman’ undertaking or ‘Harman obligation’ to not use documents produced or filed in one Court for any other Court proceedings.
Understanding Implied Undertakings in Legal Proceedings
The High Court in Hearne & Street (2008) CLR 125 describe what they acknowledged often referred to as an implied undertaking at paragraph 96:
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 types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
In Pace & Halkias [2021] FamCAFC 81, the Full Court considered implied undertakings with respect to the release of expert reports. In that case, the appellant sought to use the expert reports in his criminal proceedings. The Full Court also observed that it is not for this Court to consider the admissibility of the documents in the other Court or the purpose for which it may be used as those are matters for the other Court to determine.
The relevant factors to consider in such an application for leave has been discussed in several cases. Wilcox J’s comments in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 are often referred to. The relevant factors to consider may depend on the circumstances but include:-
(a)The nature of the documents;
(b) How the document came into existence;
(c) Any prejudice to the author of the document;
(d) The commonality of subject matter for the two Court proceedings;
(e) The interrelated relationship of the parties in proceedings;
(f) Whether or not the party seeking the release of the undertaking would suffer disadvantage in the other Court proceedings if leave is refused;
(g) Any inconsistency in the documents in the two proceedings;
(h) Whether or not the content are personal matters and if so, whether or not they are already in the public domain;
(i) Whether the documents could assist the second Court in determining issues of credit;
(j) How the release of documents would assist in achieving justice in the second proceedings.
Purpose and Limitations of the Undertaking
The purpose of such an undertaking is to protect the parties’ privacy and confidentiality and to encourage full and frank disclosure. The obligation extends beyond the parties to their legal representatives and third parties, including experts. As it is an undertaking to the Court, the Court must be satisfied that it is appropriate to release parties from their undertakings regardless of whether or not the parties seek such release by consent[2].
The Court must be satisfied that special circumstances exist to justify the release from the undertaking. The circumstances do not need to be exceptional.
The authorities make it clear when considering whether or not to release parties from their undertakings, it is not this Court’s role to consider how these documents will be used in the other proceedings.
The principle of the implied undertaking, as reinforced by Rule 6.04 and judicial precedents, plays a crucial role in balancing the need for confidentiality with the interests of justice. Courts are tasked with assessing applications to release parties from these undertakings carefully, ensuring that privacy and fairness are upheld while allowing flexibility in appropriate cases. This framework protects the integrity of judicial processes and preserves the trust of litigants in the legal system.
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