The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 (Vic) that identifies or could lead to the identification of a party to the proceeding.**

1. In these written reasons for decision, I refer to the person who is the subject of the application as OIW. The Victorian Civil and Administrative Tribunal **('**VCAT') has given the person that anonymised name to protect their identity and the confidentiality of their personal information.

1. State Trustees Ltd ('STL') was appointed as administrator for OIW on 29 July 2024. On 14 August 2024, VCAT sent a 'Notice of Appointment of Administrator' ('the Notice') to STL, completed by the presiding VCAT Member which is the usual practice when a professional administrator is appointed. In the Notice, the presiding VCAT Member instructed registry staff to include copies of the application, the completed VCAT pro forma medical report, a supplemental medical report and some other documents.
2. A practice has developed over time between VCAT and STL (and others) about how an administrator can use information in a Notice once received from VCAT. This decision relates to that practice.

1. On 9 July 2025, Maurice Blackburn Lawyers ('the firm') wrote to VCAT on behalf of the administrator noting that it had been retained by the administrator to pursue a Total and Permanent Disablement and/or Income Protection claim in relation to OIW's superannuation fund. The firm requested VCAT's consent for the firm to disclose copies of the same documents for causes related to the OIW's claim. The firm stated:

If VCAT requires, we are prepared to sign a confidentiality undertaking which is consistent with the scope of the Harman undertaking that prevents Maurice Blackburn Lawyers from using the materials for a collateral or ulterior purpose.[1]

1. This correspondence is routine and VCAT has typically made orders in chambers authorising the use of documents for specific purposes subject to clause 37 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), which prohibits publication of that material in a way which would identify the represented person. I have elected to formalise a chambers decision about the request into a statement of reasons to clarify expectations and possibly correct an inappropriate practice that has developed.

1. As Duty Member, I responded to the request administratively on 11 July 2025, suggesting that the request was unnecessary as the implied, or Harman, undertaking likely does not apply to the documents which are the subject of the request and asked the firm to explain why it considered that an order is required. The firm responded on 19 August 2025 that a standard covering letter from VCAT's Manager, Operations and Strategy, Human Rights Division dated 13 April 2023 ('the manager's letter') was the basis of the practice.
2. The manager's letter states:

Use in other court cases

Get legal advice if you want to use the documents for another legal case at VCAT or in a court. You may not be able to use the document if it was not used as evidence in a VCAT hearing.

This is because you used legal powers to get the documents. (You used Section 146 of the Victorian Civil and Administrative Tribunal Act 1998.) Using legal powers means the Harman undertaking may apply. This undertaking stops documents produced under compulsion being used in unrelated proceedings.

1. The implied, or Harman, undertaking is a rule or obligation, developed in case law, to protect information that is filed in courts or tribunals under rules, orders or directions issued by that court or tribunal, usually 'discovery' orders and directions. Its name derives from a UK House of Lords case Harman v Secretary of State for the Home Department[2] but in Australia is defined by the High Court decision in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 ('Hearne'). The majority of the High Court described the implied undertaking as follows:
   1. 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 Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...
   2. It is common to speak of the relevant obligation as flowing from an "implied undertaking".

The Court said that consequence of the rule is that:

1. ... the authorities recognise a broader principle by which persons who, knowing that material was generated in legal proceedings, use it for purposes other than those of the proceedings are in contempt of court.
2. It is important that courts and tribunals have access to all relevant information to make decisions and, although VCAT does not have specific discovery rules, directions or summonses can be used to compel information to be available to the parties and the tribunal. Sometimes information that is compelled from witnesses or parties turns out to be irrelevant and is not aired in open court or tribunal hearings. Opposing parties, therefore, can come into possession of material that is sensitive or confidential, but not useful in the proceedings. Without protection, that access to material could be abused. Through this implied undertaking, courts and tribunals provide protection to persons who are ordered to file such information, being that the information cannot be used in other proceedings or for purposes other than litigation, except where the information has been received into evidence or the court or tribunal has permitted use of information for specific purposes.[3]
3. The majority of the High Court in Hearne is explicit in saying the implied undertaking applies to a document 'unless it is received into evidence'. This is presumably because once documents are received into evidence and relied upon in open hearings, the information becomes publicly available.

1. The first reason why I consider that the implied undertaking does not apply is that VCAT did not make any order or direction to compel any person or agency to provide any information to VCAT[4] and did not otherwise compel the information by reason of a rule of the tribunal.

Did VCAT compel information under a 'rule of court (tribunal)'?

1. In Hearne, the High Court noted that compulsion might arise 'by reason of a rule of court'. The Victorian Civil and Administrative Tribunal Rules 2008 do not include specific rules about medical reports and other documents that were included with the Notice sent to the administrator.
2. A VCAT practice note states:[5]

A person applying for the appointment of a guardian or administrator or supportive guardian or administrator for someone (the proposed represented person) must provide (or arrange for) a medical report about the disability of the proposed represented person and their capacity to make decisions. VCAT provides a form for a medical report to be completed by a medical practitioner.

1. Similarly, the pro forma application form that the applicant completed states:

You are responsible for providing VCAT with a copy of a recent and relevant medical report that establishes the disability and/or decision-making capacity of the person you are seeking an order about.

1. A VCAT practice note is not a rule of the Tribunal although it is issued by the VCAT Rules Committee. Sections 151, 157 and 158 of the VCAT Act make a clear delineation between a 'rule' and a 'practice note'. A practice note exists to give guidance to parties about the procedures of a court or tribunal.[6] Practice notes do not operate as 'rules of court'. As the registrar has no discretion to reject an application for failure to comply with a practice note, a practice note does not amount to compulsion for the purposes of the implied undertaking.

Did VCAT compel the information under directions or orders?

1. The implied undertaking most often applies to discovery processes and situations where parties are ordered or compelled by a court or tribunal to file information in litigation.[7] In this case, as with most routine guardianship and administration applications, VCAT did not compel a person or agency to file information under any directions or orders.

1. The medical report and three other documents were filed with the application without any specific intervention from VCAT. No other materials were required or filed before the hearing and no directions or orders were given prior to the uncontested hearing. Therefore, the material was not the subject of orders or directions by VCAT, and no compulsion led to their filing.

1. The second reason why I consider the implied undertaking does not apply is that the information was clearly received into evidence. In accordance with the usual terms of such orders, the order appointing the administrator states:

VCAT makes this order because it is satisfied that - due to a disability, RP does not have capacity to make decisions about the personal and financial matters listed in this order.

1. In my view, that makes it clear from the face of the order that the medical reports were received in evidence at the hearing on 29 July 2024 as there is no other basis on which VCAT could have been satisfied of these elements. It is a reasonable inference that the reports were in evidence at the hearing, given that the elements of disability and decision-making capacity are key to all guardianship and administration applications.

1. The manager's letter noted in paragraph 7 above was a standard registry letter but unfortunately its statement about the 'Harman undertaking' is inaccurate and may have led the firm (and others who received it) into misunderstanding its obligations.
2. First, the administrator had not made a request under section 146 of the VCAT Act for the documents that accompanied the Notice. The documents were provided as part of VCAT's standard process to ensure that a professional administrator is furnished with sufficient documents to be able to perform the function to which VCAT has appointed it, for the benefit of the represented person. VCAT volunteered the documents with the guidance of the Presiding Member. Therefore, section 146 of the VCAT Act was not engaged in that transaction.
3. Second, the issue of compulsion does not arise even if section 146 had been engaged. Section 146(2) says a party may inspect a file without charge, and section 146(3) allows a person to inspect a file and obtain copies. Section 146(4) affords VCAT a range of measures by which it might disallow inspection and release of copies from the file. Section 146 does not relate to the kinds of compulsion referred to in paragraph 8 above and it has no characteristics of VCAT being 'compelled'.
4. The manager's letter suggests that the firm or the administrator 'compelled' VCAT to issue the documents using 'legal powers.' As I have explained above, VCAT made no orders or directions that would be considered 'compulsion' to obtain the documents, and the implied undertaking emanates from the court or tribunal's powers to compel. A person requesting information from the court or tribunal cannot compel it, they can merely exercise a right under statute to request it, subject to VCAT's powers to refuse on certain grounds.

1. As the information provided to the administrator with the Notice was not generated in the VCAT file by any rules, orders or directions compelling that the information be filed with VCAT, the implied undertaking does not apply. It also does not apply because it is evident from the wording of the order that the information was received in an open hearing.
2. The request for consent to use documents in a claim under OIW's superannuation policy is dismissed.

[1] The High Court has explained in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 that there is 'nothing voluntary about the "undertaking"' so it seems otiose to offer to sign an undertaking. See also Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 915 per Laddie J.

[2] [1983] 1 AC 280.

[3] See further explanations in Hearne paragraphs at [51] and [107], Kakoullis v Transport Accident Commission (General) [2006] VCAT 1051 at [7] which cites Riddick v Thames Board Mills Ltd [1977] 1 QB 881.

[4] A report ordered by VCAT under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1 Part 9 Clause 35(1), Part 14 Clause 48 and Part 15AD Clause 51AH - which VCAT routinely employs to have the Public Advocate to investigate and report on applications in the Guardianship List - would most likely be 'compelled'. However, where those reports are received into evidence, they also will not attract the implied undertaking.

[5] Practice Note - PNG1 Guardianship List General Procedures.

[6] See for example the website of the Supreme Court of Victoria, which states:

Practice Notes provide information about particular aspects of the Court's practice, procedure and organisation. They sit alongside the Rules of Court to provide guidance in relation to the conduct of proceedings. Lawyers with the conduct of proceedings are expected to be familiar with their content and act in accordance with that guidance unless directed otherwise.

Practice notes are used to provide information to parties in proceedings in the Court and their lawyers on particular aspects of the Court's practice and procedure. Practice Notes are issued by the Chief Justice upon the advice of the Judges of the Court pursuant to the Court's inherent power to control its own processes. In general, practice notes are issued to:

• complement particular legislative provisions or rules of court;

• set out procedures for particular types of proceedings;

• notify parties and their lawyers of particular matters which may require their attention.

[7] See Garde Wilson v Legal Services Board (Legal Practice) [2007] VCAT 1406 at [47]-[52].