Fair Work Commission and the implied Harman undertaking

These passages from  a recent Fair Work Commission case explain the principles which are called the implied Harman undertaking and which apply to parties and practitioners involved in Fair Work Commission hearings. The rule applies to the use to which documents obtained through the processes of a hearing is limited.

“Implied Undertaking

[8] The implied undertaking, variously termed an ‘implied Harman undertaking’ or a ‘Hearne v Street Obligation’ provides that, where a party is compelled to produce a document or disclose information in court proceedings, the party receiving the document cannot use it for any purpose other than that for which it was disclosed, except with leave of the court. 1

[9] The applicability of the implied undertaking to documents produced in Commission proceedings has not been challenged. The implied undertaking was considered to attach to documents produced in Brian Klippert v Veolia Environmental Services (Australia) Pty Ltd 2 and Craig Patterson v Service Panel Pty Ltd T/A Service Panel Pty Ltd.3 In a decision of the Federal Court relating to the operation of the implied undertaking on the Administrative Appeals Tribunal (the AAT), it was stated that the basis of the implied undertaking lies in the fact that the documents are produced under compulsion, rather than arising from the inherent power of the court and found that it applied to proceedings of the AAT.4 I am therefore of the view that the implied undertaking arises in the matter at hand.

Special Circumstances

[10] Special circumstances must be established to justify release from the obligation. 5 Whether documents should be released from the protection of the undertaking turns on the facts of each case.6 In Springfield Nominees Pty Ltd and Others v Bridgelands Securities Ltd and Others, Wilcox J stated:

“[f]or ‘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.” 7

[11] ‘Special circumstances’ has not been narrowly confined. In Holpitt Pty Ltd v Varimu, Burchett J stated that the applicant must show some circumstance which takes the matter out of the ordinary course. 8 The satisfaction of ‘special circumstances’ does not require extraordinary factors bearing on the question, rather, it is sufficient that a good reason be evinced for departing from the ordinary course and allowing the use of the documents for the benefit of a party in other litigation.9 Special circumstances have been said to be found ‘fairly readily’ where it is established that the use of the documents is reasonably required for the purpose of doing justice between the parties in other proceedings.10

[12] Mr Johnson submits that admissions made in the materials sought to be released are relevant to the central issue in dispute in the subsequent proceedings. Particularly, the documents evidence agreement between the parties in the primary proceedings as to the date at which Mr Johnson’s employment with Coombe Yarra Valley commenced, the contractual entitlements of Mr Johnson in return for his performance of work for Coombe Yarra Valley and the value of accommodation provided to Mr Johnson by the Coombe Yarra Valley. Mr Johnson submits that these issues are critical to Mr Johnson’s case in the subsequent proceedings, as they will allow the Federal Circuit and Family Court of Australia to determine substantive matters in dispute as well as appropriate penalties for what Mr Johnson submits are misrepresentations made to the Court. 11

[13] Mr Johnson also submits that Coombe Yarra Valley were the Respondent in the primary proceedings and are the First Respondent in the subsequent proceedings, and that the same solicitors have acted in both proceedings. 12 Further, Mr Johnson submits that the facts relating to his termination of employment are relevant to the subsequent proceedings, as are other common facts.13

[14] On the basis of Mr Johnson’s submissions, and in the absence of any opposition by Coombe Yarra Valley, I have formed the view that special circumstances have been established in the present matter. It is therefore appropriate for me to determine whether to exercise the discretion to grant leave to Mr Johnson to use the documents sought.

Discretion

[15] The factors to be considered in the exercise of discretion were set out in a non-exhaustive list in Springfield as follows:

  • 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. 14

The nature of the document

[16] With regard to the nature of the document, Mr Johnson submits that the fact that the Coombe Yarra Valley was not compelled to provide the particulars which it did provide in its Form F3, and was not compelled to make a jurisdictional objection, weighs in favour of releasing these documents from the undertaking. 15 In his submissions, Mr Johnson suggests that the implied undertaking may not apply to the documents on this basis.16 Whilst I agree that compulsion goes to the existence of the undertaking rather than the release from the undertaking, I do not consider that whether Coombes Yarra Valley was compelled to make the particular statements is a relevant consideration. It is sufficient that Coombe Yarra Valley was compelled to file the Form F3, and the outline of submissions and associated evidence.

[17] Mr Johnson further submitted that there is nothing remarkable about the relevant documents and that they are common to unfair dismissal proceedings.

Circumstances under which the documents came into existence

[18] As to the circumstances under which the documents came into existence, it is submitted by Mr Johnson that the documents were created for the purpose of proceedings and were therefore expected to enter the public domain. 17 As such, the maintenance of the confidentiality of these documents, being the object of the undertaking, is of less concern, and this factor weighs in favour of granting leave.

Attitude of the author of the document and prejudice to the author

[19] Mr Johnson submits that there is no prejudice that can be suffered by Coombe Yarra Valley as a result of granting leave. 18 It is submitted by Mr Johnson, and I note, that Coombe Yarra Valley has not objected to the release of the documents from the undertaking. Coombe Yarra Valley has, rather, sought a non-publication order to restrict publication of this Decision in order to prevent Mr Johnson’s materials, and reference to his Statement of Claim lodged with the Court entering the public domain until those issues have been properly contested and determined.19 I am of the view that, in absence of any objection by Coombe Yarra Valley, this factor must be considered to weigh in favour of granting leave.

Nature of the information in the document

[20] With regard to the nature of the information in the document, Mr Johnson submits, and I agree, that the documents do not contain personal data or commercially sensitive information. 20 This consideration weights in favour of granting leave.

Circumstances in which the document came into the hands of the applicant

[21] Mr Johnson did not make submissions with regard to how he came to receive the relevant documents. I observe that the documents were lawfully obtained through the Commission’s processes. This factor weights in favour of granting leave.

Likely contribution of the document to achieving justice in the secondary proceedings

[22] It has already been noted that, as Mr Johnson submits, the documents sought are important to achieving justice in the subsequent proceedings. Mr Johnson further submitted that granting leave would assist him in pursuing his claim, but would not prevent Coombe Yarra Valley from defending it. 21

[23] Having considered the submissions of Mr Johnson on the above factors and noting that Coombe Yarra Valley has not objected to the application or provided submissions on the above factors for my consideration, I have determined that an order granting leave from the implied undertaking should be granted.

Non-Publication

[24] In their Outline of Submissions, Coombe Yarra Valley requested the Commission exercise the discretion under s.594(1) of the Act to restrict publication of the whole or any part of its decision or reasons in relation to this matter. 22 Section 594 of the Act provides as follows:

“594  Confidential evidence

(1)  The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a)  evidence given to the FWC in relation to the matter;

(b)  the names and addresses of persons making submissions to the FWC in relation to the matter;

(c)  matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d)  the whole or any part of its decisions or reasons in relation to the matter.

(2)  Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”

[25] In Day v Smidore and others (No 2), 23 the NSWIRC, considered an application to suppress the names of witnesses in a decision made under s. 164A of the Industrial Relations Act 1996 (NSW), which provides:

“164A Powers of Commission as to the disclosure of matters before the Commission

(1) A “non-disclosure order” is any of the following orders–

(a) an order prohibiting or restricting–

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission,

(c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings.

(3) The Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice.

(4) The Commission may from time to time vary or revoke an order it has made under this section.

[26] The Court there stated:

“The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings “publicly and in open view”: Scott v Scott [1913] AC 417 at 441.”

[27] Decisions of the Commission have held that the presumption of open justice cannot be displaced by mere embarrassment, distress or damage which publication may cause a party. 24 In Corfield, Commissioner Bissett observed that an application for de-identification, as was before her in that matter, is considered the least adverse to the maintenance of open justice.25 It follows that an application for non-publication of the whole or any part of a decision of the Commission would require stronger arguments in its favour.

[28] Coombe Yarra Valley submits that such an order is necessary to ensure that non-parties do not acquire knowledge and/or gain access to the materials that remain untested in Court and that may invite reputational damage on those mentioned in the documents. 26

[29] Mr Johnson submits in reply that it would be impossible for an order under s.594(1)(d) to serve the purpose desired by the Respondent, as the documents are unrestricted at law. 27 Mr Johnson submits that the relevant documents are pleadings or particulars of pleadings, which may be inspected by any person who is a non-party.28

[30] Mr Johnson submits that Coombe Yarra Valley’s statements that that the documents remain untested in court and may invite reputation damage on Coombe Yarra Valley weighs against granting the non-publication order. Mr Johnson submits this is so because the Commission has repeatedly and expressly held that the paramount principle and presumption of open justice weighs against making an order for non-publication. 29 Mr Johnson submits mere embarrassment, distress or reputation damage by publicity is not a sufficient basis for confidentiality.30

[31] Mr Johnson submits that s.601(1) grounds an assumption that a decision of the Commission must be in writing, and that there is an assumption in s.601(4) that decisions must be published.

[32] In light of the primacy of the principle of open justice, and having considered the submissions of both parties, I have determined not to grant the order sought by Coombe Yarra Valley.

[33] Accordingly, in conjunction with this Decision, I will issue an Order 31 granting leave to Mr Johnson for use of the Form F3 Employer Response, Outline of Submissions and accompanying list of documents and evidence filed by Coombe Yarra Valley in the primary proceedings in the conduct of his subsequent proceedings in the Federal Circuit and Family Court of Australia.’”

Sinclair Johnson v Samarkan Pastoral Co Pty Ltd T/A Coombe Yarra Valley (2022) FWC 701 delivered 29 March 2022 per Harper-Greenwell C