Supreme Court provides timely reminder of the Harman undertaking and the consequences of non-party disclosure

• Published date: 31 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege
• Law Firm: Corrs Chambers Westgarth
• Author: Mr Richard Leder, Blake Pappas and Georgie Austin

The Victorian Supreme Court's decision in Re Ramsay Health Care Australia Pty Ltd [2022] VSC 226 deals with the nature and extent of the 'Harman undertaking',¹ which prohibits the use of documents obtained during court proceedings for a collateral or ulterior purpose.

The decision highlights the need for companies, including media organisations, to exercise vigilance when receiving information or documents relating to a court proceeding. This is particularly necessary where the origin of a document is unknown.

A breach of the Harman undertaking is a form of contempt and this can extend to non-party publishers in circumstances where the publisher has actual or inferred knowledge that a document they have relied upon, or republished, was obtained by way of compulsory court process.

The potential penalties for this type of civil contempt, commonly referred to as contempt by disobedience, are imprisonment, fine and/or sequestration.²

Background

In 2020, Dr Elie Khoury sued fellow orthopaedic surgeon Dr David Kirwan for defamation. During these proceedings, Dr Jeremy Kolt, another surgeon at the Albury Wodonga Private Hospital, produced 77 emails between himself and Dr Kirwan, which included disparaging comments about the clinical practice of Dr Khoury. These emails were produced in response to a subpoena.

The content of these subpoenaed emails disclosed alleged breaches of confidentiality and other hospital rules by Dr Kolt. Upon being provided with these emails, Dr Khoury arranged for his wife to send them to the CEO of the...