Using documents obtained through compulsory court processes outside the proceeding in which they were produced is a contempt of court. The obligation applies to every practitioner who touches that material, and it catches diligent practices as readily as careless ones.
What's on this page?
What a breach can cost
The consequences extend beyond the immediate proceeding and can include:
- findings of civil contempt;
- adverse costs or indemnity costs orders;
- permanent stay applications for abuse of process;
- professional disciplinary complaints; and
- loss of client confidence and professional reputation.
In Treasury Wine Estates Limited v Maurice Blackburn Pty Limited [2020] FCAFC 226 (Treasury Wine Estates), even where no breach was ultimately found, the practitioners involved incurred significant cost, stress, and disruption, including returning briefs and defending serious allegations over an extended period.
What the obligation is
The Harman obligation, also called the Hearne v Street obligation, prevents collateral use of material produced under compulsory court processes unless:
- the court grants leave; or
- the material is read or referred to in open court or received into evidence.
The obligation was described as an implied undertaking by the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and applied by the High Court of Australia in Hearne v Street [2008] 235 CLR 125. It is not a voluntary undertaking. It is a legal obligation owed to the court by parties to the proceeding and their practitioners.
The obligation applies broadly to material including:
- discovered documents
- subpoenaed documents
- affidavits and witness statements filed pursuant to rules or directions
- interrogatories and answers
- documents produced on taxation of costs
- documents seized pursuant to an Anton Piller order.
| Practical rule: if the document was produced because the court required it, treat the Harman obligation as applying unless you have confirmed otherwise. | ||
Why breaches occur, and why experienced practitioners are not immune
Breaches frequently arise not from disregard but from two sources: failure to warn clients before providing copies of material subject to the obligation, and failure to appreciate how broadly the obligation extends.
Treasury Wine Estates Limited v Maurice Blackburn Pty Limited [2020] FCAFC 226
The facts Solicitors and a barrister faced allegations that they had breached their Harman obligations in preparing a statement of claim in a class action. They had used pleadings drafted in an earlier class action against the same defendant. Those pleadings were publicly available on the Federal Court's website following settlement, but they had been based on discovered documents from the earlier proceeding. The defendant contended that the Harman obligation attached to information derived from those discovered documents and, because it had been incorporated into the pleadings, the obligation subsisted in the pleadings themselves. The practitioners were said to be in a position of special advantage as a result. The outcome The Full Court accepted in principle that the obligation can attach to a pleading where it has been prepared using information from documents subject to the obligation. No breach was found on the facts because no direct use had been made of any discovered document; use had been made of pleadings that had been made public on the court's website. The lesson: the obligation can extend to derivative material, not just the original document. The question is not whether the document itself was used, but whether the material produced under compulsion was the source of what ended up in the new proceeding. | ||
Johnston v Allen (No 2) [2024] NSWSC 476
The facts A complaint was made to the New South Wales Legal Services Commissioner arising from the sale of a property and a subsequent settled court proceeding. The complaint was made by a non-party but was prepared by a solicitor and barrister who had acted in the proceedings. It drew on a purportedly confidential affidavit filed by the practitioner against whom the complaint was made, and on three transaction documents produced under subpoena. The outcome The court held that the three subpoenaed documents were subject to the Harman obligation. A breach was found. The court was critical of the incomplete explanations provided by the parties who had breached the obligation, and noted that the practitioner whose material had been used was entitled to pursue contempt proceedings. The court ultimately made a release order, but was explicit that this was a matter of expediency and that no such order would have been made if there had been any possibility of it heading off a contempt application. The lesson: retrospective release may be granted, but should not be assumed. The completeness and candour of the explanation given to the court is a critical factor. Incomplete explanations actively reduce the prospect of relief. | ||
Before using the document: a three-step check
Run this check before using any document that is not your client's own personal or business record.
Step 1: origin
- Was the document obtained through discovery, subpoena, or court direction?
- Was it created independently of the proceeding?
Step 2: status
- Has it been read or referred to in open court?
- Has it been tendered and received into evidence?
Step 3: permission
- Is there an existing order releasing the Harman obligation?
- If not, do you need one before proceeding?
| If the answer to any question is uncertain: stop and treat the material as restricted until you have confirmed its status. | ||
Seeking release from the obligation
Only the court can release the Harman obligation. Release can be sought in advance, without admitting breach: Polyaire Pty Ltd v K-Aire Pty Ltd [2011] 111 SASR 19. The threshold for special circumstances is not high: Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104.
Courts consider factors including:
- the nature of the document and its sensitivity
- how and when the document came into existence
- whether the proposed use would advance justice in the new context
- whether affected parties object.
Where secondary use of material is foreseeable at any point in a matter, apply for release early. A prompt application, before any use is made, is far easier to manage than a retrospective one.
If a breach may already have occurred
Act immediately. Courts assess the reasonableness of the conduct, whether forensic advantage was sought or obtained, and the completeness of the explanation given. Delay and incomplete explanations both operate against the practitioner seeking relief.
Do immediately
- Stop further use or dissemination of the material.
- Inform relevant parties where appropriate.
- Prepare a clear and complete explanation of what occurred.
Then
- Apply promptly to the court.
- Proffer an apology and provide a comprehensive explanation for the breach.
- Consider applying for a retrospective order releasing the obligation.
- Offer to pay any affected parties' costs on an indemnity basis.
Building protective habits into your practice
- Warn clients explicitly whenever you provide them with copies of material subject to the obligation, before you hand over the documents.
- Document your analysis at the time you consider whether the Harman obligation applies, by way of a file note recording the check you performed.
- Assume the obligation applies broadly, not narrowly, where there is any doubt about whether a document was produced under compulsion.
- Seek release early where secondary use is foreseeable, rather than waiting until the question becomes urgent.
- Own mistakes quickly. Delay increases both the legal risk and the reputational risk.
