The Importance of the Harman Undertaking

The harman undertaking (or implied undertaking) is a legal principle that prohibits the use of information obtained or produced under court proceedings for any collateral purpose unrelated to those proceedings. Breach of the undertaking is a contempt of court and can attract criminal penalties and disciplinary action. The undertaking is a fundamental pillar of our litigation system and a complex area of law that requires legal practitioners to remain vigilant in the course of their work.

What is the Harman’s principle?

A recent Victorian Supreme Court decision, Re Ramsay Health Care Australia Pty Ltd [2022] VSC 226, highlights the importance of the Harman undertaking and the need for legal practitioners to carefully consider their circumstances when handling and disclosing information or documents relating to court proceedings. The case examined the issue of whether a non-party publisher can be held in contempt of the undertaking if it has actual knowledge that the document or information on which it relies originated from a court proceeding.

Justice Forbes, in her judgment, confirmed that it is important to consider the context and purpose of the publication when assessing whether there has been a breach of the Harman undertaking. Her Honors also clarified that an individual must have actual knowledge of the origin of a document rather than simply having a “general ignorance”. In such cases, her Honors said, the person must have either “willfully shut his or her eyes to the obvious” or have been reckless in failing to make obvious inquiries.