Justice
The principles in Hearne are often referred to as the 'Harman Undertaking' or the 'implied undertaking'. This is as Hearne is the
"As is well known, and as was explained by the
While
"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
Put simply, if you receive any document or piece of information in litigation from another party and, the party providing that document did so under compulsion of the court, you are unable to use that document or information for any purpose other than that litigation without leave of the court. Leave of the court may be granted for various reasons determined on a case-by-case basis and include considerations as to whether there may be a legitimate public interest in the proposed wider use of the evidence.
Notably, in Hearne the implied undertaking stopped applying to documents once they had been admitted into evidence. As alluded to by
Moreover, it is clear from Hearne, though not relevant in the Lehrmann trial, that the implied undertaking binds anyone to whom documents and information are given in proceedings, including for example a party's solicitors and any expert witnesses who are each directly bound by the obligation and are not merely potentially liable as an accessory to a breach by the party. 5 This was indeed the case in Harman when the person in contempt was the party's solicitor.
Of note is the fact that there is no suggestion that knowledge of the Hearne obligation and its consequences must be held by the person in breach. It is sufficient to establish a breach of the Hearne obligation in circumstances where the person in breach is merely found to have knowledge of the origins of the material in legal proceedings. That is, ignorance of the law does not prevent liability arising. 6
Finally, the principles set out in Hearne establish a substantive legal obligation imposed by law and there is therefore 'an obligation to the Court, not the other party, which is implied. It is for that reason that its breach is treated as contempt'. 7 That is to say, in most circumstances, a breach of the Hearne obligation could result in a charge of civil contempt of Court for the person in breach, whether that be a party, their solicitor, an expert etc. Contempt of court is serious and can result in a fine or imprisonment depending on the circumstances of the breach (including whether the breach was intentional). For solicitors, this may also result in a complaint to the
Anyone engaging in court proceedings should be aware of the Hearne obligation and its applicability to documents in proceedings. For any party or non-party (for example a witness) to proceedings who may be concerned about a potential breach of the Hearne obligation advice should be sought as to any potential legal consequences.
Footnotes
1 Lehrmann v
2 Hearne v Street (2008) 235 CLR 125 [96].
3 Hearne v Street (2008) 235 CLR 125 [173].
4 [2020] FCAFC 226; (2020) 282 FCR 95.
5 Hearne v Street (2008) 235 CLR 125 [109].
6 Hearne v Street (2008) 235 CLR 125 [112].
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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