ERA Legal recently succeeded in dismissing an application for the plaintiff to be released from the implied undertaking commonly referred to as the Harman Undertaking. The Supreme Court of New South Wales in Tiger Nutrition Pty Ltd v Rainier De Silva  [2019] NSWSC 1269  emphasised the importance of the Harman Undertaking, even if the separate proceeding is closely related.

What is the Harman Undertaking?

There is an implied undertaking to the Court that documents obtained as a result of the compulsory processes of the Court (such as subpoenas) will only be used for the purposes for which they were disclosed, and not be used for a collateral or ulterior purpose. This principle was established by the Privy Council in Harman v Home Department State Secretary  [1983] 1 AC 280.

The primary purpose of the Harman Undertaking is to protect parties’ privacy and to encourage full and frank disclosure whenever required for the purposes of the litigation. The implied undertaking applies to parties in proceedings and also to any third party (such as expert witnesses) who receives documents and are aware that the document was produced in legal proceedings under compulsion of court order.

The documents covered by the Harman Undertaking include:

• pleadings, other than an originating process.
• documents inspected after discovery.
• documents produced on subpoena.
• documents seized pursuant to an Anton Piller order (or Search Order).
• affidavits and witness statements served pursuant to court order.

Factual Background

The factual background in the present circumstances is significant.

ERA Legal act for several defendants in two separate proceedings. The plaintiff in both proceedings is the same: Tiger Nutrition Pty Ltd (Tiger Nutrition). Tiger Nutrition commenced one set of proceedings on 1 April 2019, which are still ongoing (Main Proceedings). Tiger Nutrition then commenced a separate set of proceedings on 6 June 2019 (Anton Piller Proceedings) against a Third Party (TP), and obtained an ex parte Search Order against TP. TP filed an application to set aside the Search Order.

Anton Piller Proceedings

After the Search Order was made without TP’s knowledge, Tiger Nutrition attended TP’s home and seized documents. TP filed a motion to set aside the Search Order.

Application for Release from the Harman Undertaking

The Harman Undertaking is an implied undertaking that parties give to the Court. As a result, only the Court can release a party from that undertaking (see Re Holpitt Pty Limited v Varimu Pty Limited 1991] FCA 269) .

A party seeking a release from the Harman Undertaking needs to specify the documents which it seeks a release from and the purpose for which the release is sought. It also needs to demonstrate to the Court that there are special circumstances why the Court should grant the release (see Re Springfield Nominees Pty Ltd [1991] FCA 472 ). One such special circumstance is the likelihood that justice will be achieved in the second set of proceedings.

Tiger Nutrition applied to the Court for a release from the Harman Undertaking to enable it to use documents in connection with TP’s application to set aside the Search Order.

Tiger Nutrition claimed that the release from the undertaking for a specific list of documents would enable justice to be achieved for them when defending TP’s motion to set aside the Search Order. The Court disagreed. Even though the Court recognised that the the separate proceedings were closely related, Justice Robb held:

“… it might seem, on a shallow analysis, that these proceedings are so closely related to the other proceedings, in which the application is being made to discharge the search order made by Rein J, that there should be no substantial reason why leave should not be given to Tiger Nutrition to use documents compulsorily produced in these proceedings to resist the vacation application in the other proceeding.

However, counsel for Tiger Nutrition accepted that his client had made the decision to commence the new proceedings; and it had gained the benefits sought from taking that course, so that it could not ask the Court in these proceedings to treat its application to be relieved from the implied undertaking other than by strictly applying the relevant principles.”

Having considered all the circumstances, and notwithstanding the fact that the proceedings seemed closely related, the Court refused to release Tiger Nutrition from the Undertaking.

The manner in which these proceedings were run, the failure to consider the importance of the Harman Undertaking and the difficulty arising from the fact that there were separate proceedings are all very real and practical examples of the importance of the Harman Undertaking and the very real effect it can have on proceedings and the rights of parties.

You can also check out the following articles previously written by us on the topic of the Harman Undertaking:

• What’s the harm? The practical consequences of breaching the Harman Rule
• Confidentiality, Contempt and the Court: implied undertakings and the Harman Rule