In litigation, the process known as ‘Discovery’ requires the parties to provide each other with every Document relevant to the case based on the pleadings; a party cannot refuse to provide documents because they are personal or contain sensitive commercial information. A principle of common law is that a party can only use the sensitive and confidential material the Court compels litigants to provide for that particular litigious matter.

For example, suppose a person identifies from a document obtained in discovery from the other party or under subpoena from a third party. In that case, if there is a new claim against a person for an unrelated matter, parties cannot use that document – no matter how incriminating – to prosecute the new claim. Utilising a document provided under such compulsion for any other purpose is contempt of Court.

Harman Undertaking

The “Harman undertaking” refers to an obligation based on the UK House of Lords decision in Harman v Secretary of State for the Home Department (1983) 1 AC 280. The Australian High Court adopted the undertaking, or at least the obligations first formulated in Harman, in the following broad categories:

“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”.

Hearne v Street (2008) 235 CLR 125

The primary rationale for the undertaking is to encourage full and frank disclosure by litigants and minimise interference with their rights, as opposed to the compulsory nature of Court processes.

The Harman undertaking is an obligation for the parties’ benefit and arises through the operation of law. The policy considerations behind this obligation are to encourage full disclosure during the discovery process and to minimise the temptation to conceal or destroy relevant documents.

Lord Denning MR held in Riddick v Thames Board Mills Ltd [1977] QB 881 that the public interest requires that the documents disclosed on discovery should be used for the action in which they are disclosed. The reason for such an approach is to encourage “openness” and “fairness.” Lord Scarman in Home Office v Harman [1983] 1 AC 280 at 321 approved Lord Denning’s findings on this matter, and Lord Diplock expressed that the implied undertaking was that the documents could not be used for 

” … some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, … [the person giving the undertaking] was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people’s documents”.

Home Office v Harman [1983] 1 AC 280at 302

Suggesting that the policy consideration is to minimise invasions into the privacy and confidentiality of others.

Does the Harman undertaking apply?

To determine whether the Harman undertaking applies, there are two questions to consider:

• (1) was the document produced within the compulsory process of the Court;
• (2) was the document read or referred to in open Court;

Assuming the answer to the first question is yes, the implied undertaking will arise except if the parties read or refer to the document in open Court.

In certain circumstances, it may be uncertain whether a document has been read or referred to in open Court.

When does the undertaking apply, and what does it prohibit?

The undertaking is a principle of the common law that has been statutorily enshrined (and abrogated) in various Australian jurisdictions – rule 20.03(1) of the Federal Court Rules 2011 (Cth) states:

“If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to utilise the document except concerning a particular proceeding no longer applies”.

The undertaking prohibits using the material, for example, for the “collateral or ulterior” purposes of complaining about, alleging, or exposing unlawful behaviour outside of the proceeding or maintaining a legal action different to the one in which the Court ordered production of the material.

When does the undertaking cease to have effect?

At common law, a release from the undertaking can only occur if the Court or tribunal handling the relevant proceedings decides to exercise its discretion and grants permission for the release.

It is essential to understand that obtaining a release from the implied undertaking is not easy. The Court will always seek to protect the privacy and confidentiality of the parties involved to the greatest extent possible while still achieving justice.

Special Circumstances

The decision to grant a release is ultimately up to the judge or magistrate presiding over the case. They must consider whether special circumstances justify releasing the party from their obligation, including

• the nature of the document,  
• the circumstances under which the document came into existence,  
• the attitude of the author of the document and any prejudice the author may sustain,  

• whether the document existed before the litigation or was created for that purpose and, therefore, expected to enter the public domain,
• the nature of the information in the document, in particular, whether it contains personal data or commercially sensitive information,  
• the circumstances in which the document came into the hands of the applicant, and 

the likely contribution of the document to achieving justice in another proceeding is recognised as the most critical consideration to ensure that all relevant material is before the Court to enable it to discharge its function of doing justice between the parties. 

The Court must also consider whether any separate proceeding involves identical parties and the broader public interest.

In D’Sylva v Bloombold Investments Pty Ltd [2023] WASC 141, with the consent of both parties, the Western Australian Supreme Court released the parties from the Harman Undertaking to allow documents obtained in discovery and produced by a third party to be used by the litigants’ for the limited purposes of obtaining tax advice and filing tax returns. The Court found that releasing the documents for taxation purposes was in the interests of justice as it allowed the parties to obtain the proper accounting advice and lodge proper tax returns with the ATO.

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In Fazio v Fazio [2024] WASC 114, the plaintiffs claimed that their mother had died after contracting with their father to create mutual Wills. Their father had died in 2006, with the Court granting probate in solemn form of his Will. They also claimed a grant of probate in solemn form of their mother’s Will. The plaintiff’s brother, Jack, admitted that their parents executed documents purporting to be mutual wills but denied that the mother understood the effect of the document or intended to agree to the terms and conditions set out in the executed document. He also denied that the Will she signed in 2006 was her last valid Will and contended for the validity of a purported 2014 Will. 

 The plaintiffs denied that their mother had made the purported 2014 Will. Memoranda and attendance notes of the solicitor who had prepared the 2006 Wills came into Jack’s possession through discovery in separate legal proceedings in the Supreme Court of Western Australia in 2010. Jack applied to the Court for leave to be released from the Harman undertaking to use the documents discovered in the earlier proceedings. 

The documents

The parties involved have had multiple litigation proceedings over many years. The question is whether the defendant should be allowed to use 16 documents (Documents) obtained through discovery in a Partnership Dispute proceedings in the Supreme Court of Western Australia. The defendant’s solicitor has sworn to the relevance of these documents in the current proceedings. The defendant wishes to tender the documents at trial. The current proceedings consist of two independent suits. 

The defendants discovered the documents in Fazio v Fazio [2010] WASC 263 dismissing a claim by Jack and his wife Maria Rita Fazio against Ridolfo Rosario Fazio and 12 other defendants, including Giuseppina Fazio, but not Sarina Koleszko. The Court of Appeal dismissed the appeal from this decision in Fazio v Fazio [2012] WASCA 72, and the High Court subsequently dismissed a special leave application. 

The documents all related to estate planning for the parents and corporate restructuring of their business, company, and associated trusts in the lead-up to executing the 2006 Wills and recorded circumstances of executing those Wills, and they came into existence for that purpose. The documents contained privileged records of instructions and advice from legal practitioners, not those expected to be in the public domain. The documents were relevant to the 2006 Will but did not apply to exploring the mother’s reasons for wanting to make a new Will in 2014. 

The decision

The Court always requires an applicant for a grant of probate, whether in common form or solemn form, to prove to the satisfaction of the Court that the deceased made the Will being propounded of his own volition, without coercion and with a fully comprehending mind; understanding the nature and effect of the Will; its consequences, with a general knowledge of his property and the persons to whom consideration should be given when determining his testamentary intentions.

The Court requires the applicant to provide pertinent material that supports the Purported Will. The nature of this material needs to be such that it enables the Court to discharge its legal function. This function ensures that justice is served between all parties involved.

The purported written contract to make mutual wills and the 2006 Wills by the parents spoke for themselves without the need for the detailed instructions provided for their preparation. The Court was not satisfied that Jack had established that special circumstances justified the exercise of discretion to grant leave to release the litigants from the Harman undertaking.

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