HARMAN OBLIGATION - application for release from obligation of confidentiality - statements lodged by respondent and received by applicant pursuant to sections 25 and 27 of the ART Act - statements subject to Harman Obligation in the hands of the applicant - proposed use of documents for collateral purpose - proposed proceedings at Fair Work Commission - special circumstances to be demonstrated - no special circumstances demonstrated - request for release denied.

Administrative Review Tribunal Act 2024 (Cth)

Fair Work Act 2009 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Crest Homes Plc v Marks [1987] AC 829

Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467

Riddick v Thames Board Mills Ltd [1977] QB 881

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

1. Ms Michelle Bower is presently seeking review of a decision made on 20 September 2024 by the Australian Capital Territory to deny liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).[1] Ms Bower had made a claim for compensation dated 13 May 2024 in respect of an injury she described as 'psychological'.[2] A short medical report of 7 May 2025 from her treating general practitioner stated that the diagnosis was 'adjustment disorder' and attributed this to 'workplace stress'.[3]
2. Ms Bower is employed by the ACT Education Directorate. She stated in her claim that she first noticed symptoms of her disorder on 31 October 2023, and she attributed this to injury that occurred on 24 October 2023. She attached a statement to her claim which commenced with the words 'From October 2023 to April 2024, I was involved in a workplace disagreement with my employer regarding remuneration'. However, in clarifying the circumstances of the injury, which she contends occurred on a particular date, she stated:[4]

On 24 October 2023, I was advised in a workplace meeting that the ASO6 position would no longer be made permanent and that my higher duties appointment was coming to an immediate end. This came as a great shock and disappointment to me. had received positive feedback throughout my time in the position and believed there was still important work to do in the role. While no formal offer of permanent employment had been made, I had taken my employer at their word and had begun planning my future. I was devastated by the decision and began to experience low mood and anhedonia accompanied by thoughts of suicide.

3. During the present review proceedings, the respondent obtained statements from two of the applicant's supervisors dated 24 April 2025 and 23 June 2025. Both statements were lodged with the Tribunal and copies provided to Ms Bower.
4. The current review application is not yet ready for hearing, and I was told by Ms Bower that it was unlikely to be set down for hearing until April 2026.
5. Ms Bowers made an application to be released from the implied undertaking of confidentiality concerning documents she had obtained through the Tribunal's compulsory processes. The obligation of confidentiality is widely known as the Harman Obligation.
6. The obligation remains in place during and after the proceedings are concluded unless the document is received into evidence in open court, and hence the confidentiality no longer exists, or upon application for release to the court or tribunal to which the obligation is owed.
7. Such an application is now made by Ms Bower in respect of the two statements lodged by the respondent in the present proceeding. On 17 October 2025 I made orders for the parties to provide written submissions going to the following issues:
   1. Identification with precision the documents, or parts of documents that are sought to be released.
   2. Whether those documents were obtained as a result of the Tribunal's compulsory processes, and if so, identification of the particular order of the Tribunal.
   3. Stating the purpose for which those documents or information derived from the documents is sought to be used.
   4. What special circumstances exist that would justify an order of the Tribunal releasing the applicant from her undertaking under the Harman obligation.

1. Not all documents lodged with the Tribunal and exchanged between parties will become subject to the Harman Obligation. A party may voluntarily exchange a statement or document in support of their application and the opposing party does not acquire such documents as a result of the Tribunal's compulsory processes.
2. There was no order made by the Tribunal for the exchange of the two identified statements subject to the present request for release from the Harman Obligation. However, that is not the limit of the Tribunal's compulsory powers. The respondent submits that the documents are subject to section 25 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) which provides:

25 Decision-maker must give Tribunal additional documents within 28 days - general rule > > If:

(a) at any time during the Tribunal's review of a decision, a document that is relevant to the review comes into the possession or under the control of the decision-maker; and

(b) the document has not been given to the Tribunal for the purposes of the review;

the decision-maker must give a copy of the document to the Tribunal within 28 days after the day on which the document came into the possession or under the control of the decision-maker, or within a longer period specified in the practice directions.

1. The provisions of section 25 of the ART Act are supported by subsection 27(1) of the ART Act:

27 Decision-maker must give copies of reasons and documents to other parties - general rule > > (1) If a decision-maker for a decision is required to give the Tribunal a statement or copy of a document under this Subdivision within a period, the decision-maker must give a copy of the statement or document to each other party to the proceeding for review of the decision within the same period.

2. These two sections are framed in compulsory terms and are for the purpose of disclosing evidence at an early stage of proceedings rather than permitting the applicant to be surprised with evidence at a hearing that has been withheld. I accept that the statements came into the hands of Ms Bower by operation of the compulsory processes of the Tribunal.

Applicant seeks releases to pursue a collateral object

1. Ms Bower submits that she intends to use the statements to commence an application in another tribunal, the Fair Work Commission, by way of an application for protection against some, as yet, undefined adverse action pursuant to Part 3-1 of the Fair Work Act 2009 (FW Act).
2. In an earlier decision, Sewell and Comcare [2025] ARTA 2326 is summarised some relevant law in relation to the issue of use of documents for collateral purposes:[5]

1. The Harman Obligation is one that arises wherever lawful compulsory processes bring documents, or information derived from documents, that would otherwise remain private and confidential to the possession or attention of parties to a dispute. The information is only to be used for the purposes of the legal proceeding at hand and thereafter must remain confidential. It is an obligation that is not restricted to court processes, but includes commercial arbitrations conducted in accordance with law (Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10) (Esso), and to Tribunal review proceedings (Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467) (Otter Gold Mines). 2. This obligation of confidentiality is a substantive legal obligation and the High Court's frequently cited statement of the obligation from Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) runs thus:[6]

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.

3. In that formulation, the High Court did not use the expression 'ulterior or collateral' purposes, but the more direct expression, 'any purpose other than that for which it was given'. It was an earlier decision in the High Court in Esso that the expression of 'collateral object' was referred to in connection with the obligation of confidentiality, but again with the firm injunction 'not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed'. Mason CJ stated:[7]

In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated: > > "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order." > > Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it. > > It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. [Footnotes deleted]

4. The rationale behind the Harman Obligation is to balance the competing considerations of the need to override the privacy of parties and non-parties by court orders and summonses to obtain evidence necessary to determine facts is dispute between the parties and against maintaining the interests of privacy by limiting that intrusion strictly for the purposes of the hearing the evidence in the matter at hand. In Riddick v Thames Board Mills Ltd [1977] QB 881 it was stated:[8]

Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The court should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

5. To use documents obtained in one proceeding for the purposes of another proceeding is clearly a collateral purpose. The only way in which the applicant may achieve her goal is to demonstrate that there are circumstances that would justify the Tribunal granting release from her undertaking of confidentiality. In Crest Homes Plc v Marks [1987] AC 829 it was stated, after reviewing various authorities, 'they illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.'[9] The requirement to demonstrate special circumstances is not confined to those documents obtained by discovery, a process in civil litigation, but to all documents, and the information derived from them, that are subject to the Harman Obligation.

There are no special circumstances justifying release from the Harman Obligation

1. There is no limit on the factors that might be weighed before deciding but the decision in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield) and the existence of 'special circumstances' was not confined to any particular or exhaustive set of factors:[10]

For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

2. In the absence of any existing proceeding before the Fair Work Commission, it is impossible to weigh the contribution of the two statements to achieving justice in the second proceeding. Even if an application was to be commenced, it will not be until the basis for the application and the relevant facts and circumstances for determination are identified, that the contribution to achieving justice to be made by the documents can be evaluated.
3. Accordingly, Ms Bower has not made out such special circumstances to justify the Tribunal releasing her from her obligation of confidentiality. The application for release from the Harman Obligation in respect of the two identified witness statements is denied.

Respondent: Ms A Costin, instructed by Mr Liam Stewart, Moray & Agnew, Lawyers

[1] T19, 84-91. References commencing with the letter 'T' are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the respondent pursuant to s 23 of the Administrative Review Tribunal Act 2024 (ART Act), requiring a decision-maker to give to the Tribunal all documents within its control relevant to the review. They are generally known as 'T-Documents', sequentially numbered, with subsequent page references.

[5] [2025] ARTA 2326 [13]-[15], 31 October 2025.

[6] [2008] HCA 36; (2008) 235 CLR 125, 154 at [96] per Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed at 131 [3].

[7] (1994) 183 CLR 10, 31 per Mason CJ with whom Dawson and McHugh JJ agreed.

[8] [1977] QB 881 at 896 per Lord Denning.

[9] [1987] AC 829, 860 per Lord Oliver of Aylemerton in the House of Lords, with whom the remaining Law Lords agreed.

[10] (1992) 38 FCR 217, 225 per Wilcox J.