What’s the harm? The practical consequences of breaching the Harman Rule

Articles, Restructuring + Insolvency

In a recent decision by her Honour Olsson J in the District Court of New South Wales, a creditor has learned the hard way about the consequences of breaching the Harman Rule which we recently wrote about in our article: Contempt, Confidentiality and the Courts.

The Harman Rule prohibits, absent leave of the court, the use of documents or information gained via the compulsory processes of the court for any purpose other than the proceedings in which the documents or information were disclosed.  It is frequently referred to as the “implied undertaking” to the court which arises when a party receives documents in connection with one of the Court’s processes.

In Katanga Developments Pty Ltd v Bokarelli (2015/259712) one of the parties served an affidavit on the other parties, but the party had yet to read (in essence, formally seek to rely on) the affidavit in open court.  The affidavit contained previously unknown information that another party to the proceedings then used to successfully issue a garnishee notice and obtain a six figure sum.

Two of the defendants in the proceedings, who had suddenly been deprived of the the benefit of the garnisheed money, brought a motion seeking to reverse the effect of the garnishee notice.

Her Honour Olsson J reportedly had the following exchange with the solicitor for the party which had issued the garnishee notice, referred to only as Mr C:

Olsson J: “So you used material in an affidavit that was served but yet to be deployed in the proceedings ergo still privileged to mount a garnishee order application?

Mr C: “Yes I did”.

Olsson J: “And you did not seek leave of the Court to use material that you had obtained in the process of this litigation to move another Court with material from it?”

Mr C: “I did not”

Olsson J: “Do you see the difficulty, Mr C?”

Her Honour’s unpublished judgment on the motion ordered that the funds obtained via the garnishee notice be returned.  It is not known if a costs order was made and if so, against whom.

This decision should serve as a valuable reminder to all of those frequently involved in ligation of the practical effect of the Harman Rule, and why it should never be ignored.

For more information, contact ERA Legal.


With the technical skills, diverse backgrounds and practical experience to match, our teams care about their clients.

Our Expertise

We have a strong reputation for providing specialist, market-leading advice in the practices we offer. Our teams are experts in their field and provide an unrivalled service to clients.


We want to share our knowledge with you. A collection of news and insights into those areas in which we specialise.


We offer a relevant, easy access platform that allows clients and colleagues to gain access to relevant resources.

Contact Us

With offices in Sydney and Melbourne, our team pride themselves on always being available for their clients.


We are collaborative, respectful and inclusive. Recruiting the best talent is only half of the equation; providing a culture that enables development is the other.

See our exciting opportunities available for graduates, lawyers, legal support staff and business services professionals.